Alladi Kuppuswami, J.
1. This appeal raises an interesting question, namely whether a spouse is entitled to apply under Section 11 of the Hindu Marriage Act for a declaration by a decree of nullity, that the marriage is null and void, after the death of the other spouse.
2. The respondent herein is the second wife of one Narasappa who died in 1966. Narasappa married her in 1962 even during the lifetime of his first wife the appellant herein ; the second appellant being the son of Narasappa by her. The respondent file O.S. 35 of 1968 on the file of the Sub-Court, Adoni on her behalf and on behalf of her minor child for partition and division of her late husband's properties. The suit was dismissed on the ground that the marriage of the plaintiff was void as it took place during the lifetime of the first appellant herein. The legitimacy of the petitioner's minor child could not be considered in the suit as there was no decree of nullity obtained by that time.
3. The respondent herein therefore, filed, O.P. No. 45/69 under Section 11 of the Hindu Marriage Act praying for a decree of nullity of her marriage with Narasappa.
4. It was contended on behalf of the appellants herein that the petition was not maintainable after the death of Narasappa. The Court below negatived that contention and held that the petition was maintainable and as there was no doubt that her marriage took place during the lifetime of another wife, a decree of nullity was passed. The appellants herein have preferred this appeal against the said decree.
5. Under Section 5 of the Hindu Marriage Act a marriage may be solemnised if the following conditions are fulfilled.
(1) Neither party has spouse living at the time of the marriage :
(2) neither party is an idiot or a lunatic at the time of the marriage :
(3) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage :
(4) the parties are not within the degrees of prohibited relationship :
(5) the parties are not sapindas of each other :
(6) Where the bride has not completed the age of eighteen years, the consent of her guardian in marriage , if any, has been obtained.
Apart from this, Section 17 expressly provides that any marriage between two Hindus solemnised after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living. Under Section 11 any marriage solemnised after the commencement of the Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (I), (iv) and (v) of Section 5. It is clear from these sections that the marriage of the respondent with Narasappa was null and void. It cannot also be doubted that if she had presented the petition during the lifetime of her husband the marriage would have been declared null and void by a decree of nullity , such a marriage contravenes Section 5(1). The question for consideration is whether such a petition could be filed after the death of her husband.
6. Taking into account the language of Section 11, it is seen that either party to a marriage is entitled to present a petition for a declaration by a decree of nullity that the marriage shall be null void if it contravenes Section 5 (I), (iv) and (v). No condition is laid down in Section 11 that when a petition is presented by either party , the other party should also be living. We do not think it is justifiable to read into Section 11 any such condition. Reference was made to Section 12 of the Act which deals with voidable marriages. Section 12 provides that a voidable marriage may be annulled by a decree of nullity on any of the following grounds :
(a) that the respondent was impotent at the time of the marriage and continued to be so untill the institution of the proceedings ; or
(b) that the marriage is in contravention of the conditions specified in clause (ii) of Section 5 or ;
(c) that where the consent of the guardian in marriage is required under Section 5 the consent of such guardian was obtained by force or fraud ; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
It was argued that a perusal of this section would make it clear that an application for annulment by a decree of nullity in case of voidable marriage can be made only during the lifetime of the other party to the marriage. For instance , under Section 12(a) it is stated that it is on the ground that the respondent was impotent. Under clause (d) the respondent must have been pregnant by some person other than the petitioner at the time of the marriage. This would clearly indicate that the respondent to the petition is the other spouse and hence Section 12 presupposes the existence of the other spouse on the date of the application. It was therefore, argued that if the annulment is to be made in the case of voidable marriages only during the lifetime of the other spouse, it would follow that the application for annulment of a void marriage also should be made during the life time of the other spouse. This submission, in our view does not take into account the distinction between a void marriage and a voidable marriage. In the case of a void marriage , the marriage is null and void even from the date of the marriage. All that the Court has to do is to make a declaration that the marriage is and has always been null and void; there is no need to have it avoided. On the other hand, in the case of a voidable marriage, the marriage is valid until it is avoided and hence it stands to reason that if it is to be avoided it should be done during the lifetime of the other spouse.
7. The decision on this point by the courts in India are very scanty. The only two decisions that were placed before us were those in Gowri Ammal v. Thulasi Ammal, : AIR1962Mad510 and Thulasi Ammal v. Gowri Ammal , : AIR1964Mad118 . In : AIR1962Mad510 it was held that after the death of one of the spouses , a decree of nullity cannot be obtained. It was said that for a decree of nullity under Section 11 a petition has to be presented by either party to the marriage before the Court having jurisdiction under the Act. It was then stated that 'it would therefore follow that after the death of one of the spouses, a decree of nullity cannot be obtained.' We are unable to see how the second proposition follows from the first one. As we have observed earlier that though a decree of nullity under Section 11 has to be obtained by a petition presented by either party to the marriage, the section does not require that the other party should be living at the time of the petition. We are unable to agree with the conclusion of the learned judge that after the death of one of the spouses, the decree of nullity cannot be obtained. The decision in : AIR1962Mad510 (supra) was the subject-matter of appeal and the decision in appeal is reported in : AIR1964Mad118 (supra). While agreeing with the Judges with regard to this interpretation of Section 16 it was held by the Bench that the observations made by learned Judge that a decree of nullity could be obtained only when both the spouses are alive was not necessary as that question didnot arise for consideration before the learned Judge. They went on to observe :
'Since the decree of nullity appears, in our opinion, to be a declaration of the status of a person, we are unable to see why the death of one of the spouses should put an end to the right of the other surviving spouse to seek for such a declaration. No authority in support of either point of view has been placed before us except an observation in Mulla's Commentary, and even that is with regard to voidable marriages. We would, therefore, prefer not to express any opinion upon this question.'
It is clear from this that though ultimately they did not express any opinion, the Division Bench seemed to have been inclined to take the view that there is no reason why the death of one of the spouses should put an end to the right of the other spouse to seek a declaration that the marriage was null and void.
8. One of the main purposes of obtaining a decree of nullity is to obtain legitimization of the child. Under Section 16 of the Act where a decree of nullity is granted in respect of any marriage under Section 11 or Section 12 , any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage , if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity. Section 16 is on the same lines as Section 26 of the Special Marriage Act. Section 24 and 25 of that Act correspond to Sections 11 and 12 of the Act , though they are not in pari materia. Even under that Act there is nothing to show that an application to annul a void marriage should be made during the lifetime of the other spouse. In England, Section 9 of the Matrimonial Clauses Act, 1950 provides that where a decree of nullity is granted in respect of a voidable marriage any child who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of being annulled, at the date of the decree shall be deemed to be the legitimate child notwithstanding the annulment. It is seen that in England this benefit is conferred only upon the children of voidable marriages; whereas the Indian Legislature has gone further and has by Section 16 of the Act conferred the benefit not only with regard to the children of voidable marriage, but also void marriages. If we were to hold that application under Section 11 for a decree of nullity cannot be filed after the death of the other spouse, the result would be that a large number of children by marriages which are void would not be able to obtain the benefit of this section for no fault of theirs, simply because the parent concerned did not choose to file the petition for annulment during the life time of the other parent. The court should, even in the case of any ambiguity lean in favour of such a construction which would enable the children to obtain legitimate status. On the other hand , in this case, in spite of the clear terms of Section 11 we are asked to read into Section 11 a condition that the other spouse should be living at the time of the petition. We are not prepared to do so and deny legitimate status to children born of such marriage on the ground that the application was not filed during the lifetime of the other spouse.
9. Even in England the position seems to be that in a petition for a declaration of nullity of a void marriage can be made at any time even after both the parties are dead; whereas in the case of voidable marriage it has to be made during the lifetime of the other spouse and becomes unimpeachable once either of the parties to it has died. (Vide Rayden on Divorce, Tenth Edition , page 90) . In India due to the express terms of Section 11 requiring that the petition should be filed by either party to the marriage, it may be that a declaration of nullity of a void marriage cannot be made after the death of both the spouses but there is nothing in Section 11 which requires that the other spouse should be living.
10. For all these reasons we are of the view that the petition was maintainable in the lower Court notwithstanding the death of Narasappa and the petition was rightly allowed.
11. The appeal is dismissed, but in the circumstances without costs.
12. Appeal dismissed.