1. This appeal by the first wife and daughter of the deceased Maharaja Rameshwarsingh of Multhan preferred against the order of the District Judge, Dhar gives rise to an interesting question of law, whether an application under Section 11 of the Hindu Marriage Act (hereinafter referred to as the Act) by a spouse for a declaration by a decree of nullity of the marriage after the death of the other spouse is maintainable.
2. In order to understand the scope of the question, it is necessary to briefly state the material facts which lie in short compass that gave rise to this point. Appellant No. 1 is the legally wedded wife of the deceased Maharaja Rameshwarsingh and the second appellant is her minor daughter. The first respondent Smt. Kusumkumari Jadega filed an application under Section 11 of the Act on November 9, 1974 for annulment of her marriage with her husband Maharaja Rameshwarsingh as he has contravened the provisions of Section 5(1) of the Act. According to her, she was married to Rameshwarsingh on 15-11-1964 during the subsistence of the marriage of Rameshwarsingh with his first wife, the appellant herein. The appellants were not party as respondents to the petition under Section 11 of the Act. The step-mother of Rameshwarsingh wag the sole respondent. Having come to know of the pendency of the proceedings under Section 11 of the Act initiated by the first respondent herein, the appellants got themselves impleaded in that application and contested the claim of the first respondent herein for declaration of her marriage with Rameshwarsingh on 15-11-1964 as a nullity on several grounds. The stand taken by the appellants herein is that the first respondent was not married to her husband Rameshwarsingh and in any event the application under Section 11 of the Act is not maintainable after the death of the other spouse, namely, Rameshwarsingh. The preliminary objection relating to the maintainability of the application was overruled by the trial Court holding that the application under Section 11 is maintainable in spite of the death of Rameshwarsingh, the other spouse. Hence this miscellaneous appeal.
3. Shri S. N. Kohli, learned counsel for the appellanb contends that the very application of the first respondent under Section 11 before the lower Court is not maintainable in view of the death of the other spouse Rameshwarsingh and relied upon the provisions of Sections 11, 5, 20 and 21 of the Act and the decision of the Madras High Court reported in Gowri Ammal v. Thulasi Ammal, (AIR 1962 Mad 510) in support of his claim. This claim of the appellants is resisted by Mr. Balwantsingh, learned counsel for the first respondent contending inter alia that there is no merit in this appeal as the provisions under Section 11 do not require the presence or existence of other spouse for maintaining her application thereunder.
4. The answer to the question depends upon the provisions of Section 11 read with Section 5(1) of the Act, which read thus :--
'Section 11, Any marriage solemnized after the commencement of this 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'.
'Section 5. A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely :--
(i) neither party has a spouse livingat the time of marriage,
* * * * As the provisions of Clauses (iv) and (v) of Section 5 are not attracted to the case in hand, it is not necessary to refer to them, The Act is a special statute governing the rights of Hindus pertaining to marriage. The purpose of the Act is to amend and codify the law relating to marriage among Hindus. Section 11 deals with void marriages, whereas Section 12 refers to voidable marriages. Any marriage solemnized after the commencement of the Act can be declared to be null and void by the competent Court, if the marriage is found to have contravened any one of the conditions indicated in Clauses (i), (iv) and (v) of Section 5. The party that can seek for such a declaration under Section 11 must be either of the parties to the marriage. In other words, the wife or the husband is competent under Section 11 to initiate the proceedings for a declaration that their marriage is a nullity. The presentation of the petition under Section 11' can be by either party to the marriage. This section does not require the existence or the presence of both the parties to the marriage. The presentation of the petition must be by either the husband or the wife. It does not also specify that the other spouse must be in existence or living, nor does it say that the other spouse must invariably be shown as party-respondent. The prerequisite condition for obtaining the declaration under Section 11 is the existence and proof of one of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. The requirement being to prove and establish the contravention of any one of the conditions indicated in Clauses (i), (iv) and (v) of Section 5, there is no emphasis on the further requirement of the existence or living of the other spouse at the material time. The Parliament in its wisdom must have thought fit and proper, to provide for such a declaration even after the death of one of the parties to the marriage. The fact that one of the parties must be present and must be the applicant would rule out the possibility of the application of Section 11 to a case where both the parties to marriage are dead. Where one of the parties seeks to have a declaration under Section 11, he or she must satisfy the Court that the contravention of any one of the conditions specified therein has taken place. The defence, that could be raised and the claim of the respondents would be considered by the Court while determining the claim of the petitioner under Section 11'. It must be noticed that the Legislature was careful enough in making Section 23 of the Act, which requires the Court to be satisfied about the existence of the grounds for granting relief in any proceeding under the Act, whether defended or not. Stress is laid on the existence or otherwise of the grounds contravening the marriage and the satisfaction of the Court about such contravention so as to enable the party to obtain a declaration under Section 11 but not otherwise. The object of the legislature is clear. Any party who approaches the Court for a declaration under Section 11 will not ipso facto get the same. Even in cases where there is no defence or no one opposes, the Court has to look into the matter carefully, apply its mind and satisfy about the requirements of law and determine the issues and finally grant or refuse the prayer sought for. We may in this context refer to Section 20. Section 20 requires the claimant or the petitioner under the Act to state distinctly the nature of the case, the facts on which the claim is founded, and that there is no collusion between the petitioner and the other party to the marriage. The statement referred to above must be a verified one in the manner required by law. This provision safeguards the interest of the party, who is not present before the Court in any proceeding under the Act. The legislature provides for a declaration by a decree of nullity of the marriage to be void or voidable. In the case of void marriage, it is declared to be null and void. In the eye of law, there was no marriage even ab initio. However, in the case of voidable marriages, the marriage must be valid for all purposes until avoided or declared to be invalid by a competent Court. The legislature also has taken pains to guard the interest of the children born to parents, who have contracted such void and voidable marriages. Section 16 declares the legitimacy of the children of void and voidable marriages. Where a decree is granted in respect of Section 11 or 12, the children born to such couples shall be deemed to be legitimate, if they were born or conceived before the decree of nullity is made.'
5. The submission of Shri Kohli that the expression 'a petition presented by either party thereto' in Section if supports his contention, cannot be acceded to. The expresssion 'a petition presented by either party thereto' would only mean that an application can be filed by either of the parties to the marriage. It only emphasizes the fact that one of the parties to the marriage alone is competent to file the application under Section 11 and nothing more. Nowhere it is stated in the section that the application under this section should be filed only during the lifetime of the other spouse. To construe Section 11 in the manner in which it is sought to be interpreted by the appellants would amount to reading something which is not indicated into the section. It is now well settled that we cannot read something into the section, nor can we substitute any clause or expression to this section, The fact that the legislature has thought fit and proper to permit an application under Section 11 by either of the parties to the marriage is indicative of its liberal interpretation so as to permit either of-the parties to file an application either during the lifetime or after the death of the other spouse. The Parliament has codified law relating to Hindu marriages. The Parliament must have visualised situations and cases where the declaration under Section 11 is required or needed by the living spouse for the purpose of benefiting the children born to couples whose solemnisation of the marriage has contravened the provisions of one or more of the Clauses (i), (iv) and (v) of Section 5 of the Act. We have no doubt to observe that the case in hand is one such. If the factum of marriage is proved by the first respondent with late Rameshwarsingh on the 18th November, 1964 when the marital relationship with the, first appellant was operative and subsisting such marriage must be held to be a void one. The four children said to have been born to the first respondent through Rameshwarsingh would become legitimate (sic) but for the declaration under Section 11 by a decree that such marriage, contravened condition imposed by Clause (1) of Section 5 of the Act. As and when such declaration under Section 11 is obtained from a competent Court, the children born to such wedlock or void marriage would be entitled to be declared as legitimate, and thereby enable them to claim their respective shares in the property of their parents. In the present case, the mother of the children has initiated the proceedings under Section 11' of the Act with the sole object of safeguarding the rights of her children. There may be cases where the husband, who is alive after the death of the second wife may think fit and proper to file an application under Section 11 of the Act and declare the legitimacy of the children and enable them to have the legitimate share in the property and status in the society; such liberal interpretation would be consistent and in consonance with the very intendment and object of this section. It admits of no doubt that Section 11 has been enacted by the Parliament to declare the legitimacy of the children born to Hindus whose marriages are void. The status of such children has been amply protected by this piece of legislation. Such provision is not only in the interest of the minor children but is also in public-interest, as, such, children should not be penalised or punished for no fault of theirs, as in fact, they did not commit any sin or mistake. For the defaults or sin, if any, of their parents, they should not be made targets. This piece of legislation has been made for the advancement of the Hindu society and such liberal and wide interpretation is tuned with the times and social justice. Section 16 provides that children born to Hindus whose marriage is found to be void or voidable and declared accordingly under Sections 11 and 12 respectively would become legitimate children. Sections 11 and 12 must be read with Section 16. When so read, the narrow interpretation sought to be placed by the appellants' counsel has to be ruled out. If the appellant's construction is accepted, it would lead to anomalies resulting in great injustice to the children of the first respondent through Rameshwarsingh. Even if there is any ambiguity and if two interpretations of Section 11 are possible and plausible, the one which is more consistent and apt with the intendment and object of Section 11 read with Section 16 must be adopted by the Courts of law. The Court must lean in favour of adopting such a construction which would enable the children to obtain legitimate status and protect their rights and interest and which is in consonance with the very intent and object of Section 11 read with Section 16 of the Act. We have, therefore, no hesitation to hold that the application can be filed by either of the spouse even after the death of the other spouse and the very Section 11 does not compel the application by either of the parties to the marriage only during the lifetime of the other spouse.
6. We are unable to accede to the further submission of Mr. Kohli that the husband is a necessary party to the proceedings under Section 11 and without whom the application cannot go on and on that ground also the application is not maintainable. The question of necessary or proper party to a cause or proceeding would arise only when they are alive and thereby available to be made parties. Where the party is dead and no more in existence, this question does not raise. The husband if he was alive, must be held to be a necessary party but, however, the Court has a duty to examine whether the applicant has made out her case and whether the application is not bona fide but coercive in character. The Court's satisfaction to pass an appropriate order under Section 11 after due and proper enquiry whether the application is defended or not by the respondent is a sufficient safeguard to protect the interest of all the persons concerned. Hence there is no substance in this plea of the appellants.
7. This view of ours gains support from the decision of the Andhra Pradesh High Court in Lakshmamma v. Thavayya, (AIR 1974 Andh Pra 255), wherein similar question relating to the maintainability of an application under Section 11 by the second wife after the death of the husband arose for decision. The learned Judge, Alladi Kuppuswami, J., speaking for the Court, observed at p. 256 thus:--
'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 and 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.'
8. We shall now turn to the decision of the Madras High Court in Gowri Ammal v. Thulasi Ammal, (AIR 1962 Mad 510) on which reliance has been placed by Shri Kohli. Therein one Periaswami died in 1956. Gowari Ammal was his first wife and she had a minor son. One Kannu Ammal, the first plaintiff claimed to have married Periaswami and got a daughter through him, after the Hindu Marriage Act. Subsequent to the birth of the child, Periaswami died. Thereafter a suit was filed by Kannu Ammal and her daughter against the first wife and her son for partition and separate possession of their share of the property left by Periaswami. The first Court dismissed the claim of the plaintiffs as the marriage was void as it contravened the provisions of Section 5(1) of the Act, but granted 1/6th share to the second plaintiff, the minor daughter on the application under Section 16. The appeal by the plaintiffs was not successful. The defendants preferred a second appeal questioning the correctness of the decision granting 1/6th share in the properties on the application under Section 16 of the Act The learned Single Judge Ramkrishnan J. allowed the appeal holding that the marriage itself was void and Section 16 cannot be availed of by the second plaintiff. During the course of that judgment, the learned Judge observed at page 512 thus :--
'..... that after the death of one of the spouses, a decree of nullity cannot be obtained. It will also, not be possible to get a decree of nullity in respect of a voidable marriage after the death of one or both the spouses because the right to avoid a marriage is given only to the parties to the marriage.'
The aforesaid observation is not only obiter but also incorrect, as Section 11 does not permit such construction. The very question framed by the learned Judge for consideration in para. 4 at page 511 is, 'whether if one of the spouses is dead without a decree of nullity of marriage being obtained, and when in a subsequent dispute about succession to property, the marriage is found to be void under Section 11, the principle of legitimacy of the children laid down in Section 16 of the Act can be applied ?' The question was answered in the negative. Section 16 cannot be applied to a case where there was no declaration or decree under Section 11. Admittedly, there was no decree under Section 11 in that case. The decision is perfectly correct but the observation of the learned Judge is not only obiter but is erroneous. In fact, the Division Bench in the Letters Patent Appeal in Thulasi Ammal v. Gowri Ammal, (AIR 1964 Mad 118) observed that the question of the maintainability of the application under Section 11' after the death of the other spouse did not arise for consideration. Hence this decision would not render assistance in any way to the appellants.
9. For all these reasons, we have no hesitation to hold that the application by the first respondent herein under Section 11 of the Act filed in the lower Court is maintainable in law on the assumption that she was married to the deceased Rameshwarsingh on 15-11-1964 and she got four children through him. We have decided this question of law arising on the preliminary objection on the assumption of fact referred to above. The case of the appellants being that there was no marriage between the first respondent and the deceased Rameshwarsingh that particular issue has to be decided by the trial Court after adducing evidence and affording opportunities to all the parties concerned and we, therefore, refrain from giving any finding with regard to the statement of facts or relating to the merits of the respondents' claim under Section 11 of the Act before the trial Court
10. In the result, this appeal fails and is hereby dismissed with costs, Counsel's fee Rs. 100/-, if certified.