1. In this appeal against the order of the Senior Sub-Judge, Karnal dismissing the petition of the appellant under Section 11 of the Hindu Marriage Act, the only question that arises for consideration is as to whether a petition under Section 11 of the Hindu Marriage Act, can be filed after the death of either of the two spouses or not. Krishni Devi one of the widows filed a petition under Section 11 of the Hindu Marriage Act, 1955 (hereinafter called the Act) impleading the other widow of her husband Mangat as a respondent claiming a declaration that the petitioner's marriage with Mangat was a nullity. This petition was dismissed on the ground that it was not maintainable after the death of Mangat. Being aggrieved Krishni Devi has come up in appeal to this Court.
2. Support for the contention that the petition under Section 11 of the Act would lie even after the death of one of the spouses was sought from the following observations made in Thulasi Ammal v. Gowri Ammal AIR 1964 Mad 118:--
'An observation has been made by the learned Judge that a decree of nullity could be obtained only when both the spouses are alive. In this case, the husband Periaswami is dead and the learned Judge seems to have suggested that now that one of the spouses to the marriage is no longer alive, it will not be open to the widow to seek for a decree of nullity of her marriage with Periasami. With respect, we may observe that this question did not arise for consideration before the learned Judge. 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. We would, however, leave to the first plaintiff the second widow of Periasami to take such steps as may be open to her to have a declaration of nullity of her marriage, which, if secured, would entitle the second plaintiff, the appellant herein to a declaration of statutory legitimacy. Except for this observation, the appeal is dismissed.'
The above observations were made in a case in which a suit had been filed by the second wife and her daughter for a declaration of her title and fore recovery of possession of half of the estate of the deceased husband. It was found that the marriage of the second wife was wholly void by reason of S. (I) read with S. 11 of the Act. Her suit was, therefore, dismissed. So far as the suit of the minor daughter was concerned, it was found that she could only take advantage of Section 16 of the Act is a decree of nullity had been obtained as only the issue of a marriage in respect of which there was a decree of nullity could, in the eye of law, be regarded as legitimate and was entitled to succeed to the estate of the deceased father. The learned Single Judge came to conclusion that there was a lacuna in the provisions of the Act in that they did not deal with the legitimacy of children of a void marriage where a decree of nullity had not been obtained. While dealing with this situation, the learned single Judge also observed that decree of nullity could only be obtained when both the spouses were alive. In Letters Patent Appeal Srinivasan J., speaking for the Court, made the above observations which support the contention raised on behalf of the appellant that her petition under Section 11 of the Act was maintainable and had been wrongly dismissed on the ground that the other spouse was dead.
3. On behalf of the respondent, reliance was placed on the view taken by Ramakrishnan, J. in Gowri Ammal v. Thulasi Ammal AIR 1962 Mad 510, that decree of nullity could only be obtained when both the spouses were alive. This view not having been accepted by the Division Bench in the Letters Patent appeal cannot be considered good law.
4. Support for the contention that the petition under Section 11 of the Act would not lie after the death of one of the spouses was also sought from the view taken by Alagiriswami J. in Paramasami Pillai v. Sornathammal, AIR 1969 Mad 124. In this case in a suit filed by the reversioners for setting aside a sale the question arose about the validity of a marriage between the vendor's father and one of the defendants. The validity of the marriage was challenged on the ground that the third defendant was not a woman at all and, therefore, there could be no marriage between her and the father of the vendor. Though this contention was accepted but it was observed that the dispute about the validity of the marriage could not be raised by a third party. The question whether one of the spouses could file a petition under Section 11 of the Act after the death of the other spouse had not come up for consideration in this case and all that was decided was (a) that even in a case where the marriage was a nullity it would be necessary for a party to the marriage to get a declaration of nullity from the Court and (b) that any person other than a party to the marriage was stopped from raising the question of nullity of marriage. As the challenge to the marriage was by a third party in this case, no decision was required on the right of one of the spouses to complain of nullity after the death of the other spouse. Having therefore, regard to the facts of the case and the question that arose for decision in. Paramasami Pillai's case, AIR 1969 Mad 124 I am of the view that this decision is not of much support to the argument advanced on behalf of the respondent.
5. At this stage it would be appropriate to examine whether there is anything in the nature of the proceedings which debars the surviving spouse from seeking a declaration of his or her status qua the deceased spouse. The marriage under the Hindu Marriage Act is a voluntary union of one man with one woman to the exclusion of all others solemnized by customary rites and ceremonies. At times even though the parties have gone through customary rites and ceremonies the marriage may be void ab initio or may be voidable. Section 5 of the Hindu Marriage Act lays down the conditions, the non-fulfillment of any one of which renders a marriage solemnized after the commencement of the Act null and void from its very inception. The marriage even though performed with customary rites and ceremonies, if it does not fulfil the conditions laid down under Section 5 of the Act is no marriage in the eyes of law, it being void ipso jure and the parties to the marriage can treat it as a nullity even without having recourse to the Court by getting a declaration to that effect. It is, however, up to the parties to seek a declaration of nullity under Section 11 of the Act for the purpose of record or for avoiding future complications. It is competent to the parties whose marriage is null and void on any of the grounds mentioned in Section 5 of the Act to enter into another marriage with any other person at any time by completely ignoring the factum of the earlier marriage. The marriage which is void ab initio does not give rise to any rights and obligations between the parties which arise from a valid marriage. On the other hand, a voidable marriage remains valid and binding unless a decree annulling the same has been passed by a Court on any of the grounds provided in the Act. The marriage continues to subsist for all purposes until declared void.
6. Having regard to the distinction between a void and voidable marriage, Mulla in his commentary on the Act at p. 698 (12th Edition) has expressed the opinion that a voidable marriage can only be challenged at the instance of either party to the marriage and cannot be challenged after the death of one of the parties to the same.
7. To my mind it seems clear that the consideration which had weighed with the learned commentator in forming the view that voidable marriages could not be challenged after the death of one of the parties to the same was not applicable to the case of a void marriage. Whereas in the case of a voidable marriage it is open to the parties to avoid the same if he or she so desires, no such option is available in the case of a void marriage, there being no marriage in the eyes of law. Keeping in view the nature of the proceedings there appears to be plausibility in the view that in the case of a marriage which is void ab initio one of the spouses can obtain a declaration from the Court about his or her status qua the other spouse even after the death of the second spouse. With great respect for the learned Judges who decided Paramasami Pillai's case, I disagree with the ratio of the decision in that case.
8. For the reasons stated above, this appeal is allowed and the order of the trial Court dismissing the application of the appellant under Section 11 of the Hindu Marriage Act is set aside. The case will now go back to the trial Court for decision on merits. Considering the difficult nature of the question involved the parties are left to bear their own costs.
9. Appeal allowed.