D.K. Mahajan, J.
1. This is an appeal by the wife against the guardian Judge granting custody of the children to the father. The mother of Kanwaljit Kaur, the wife and the mother of N. K. Singh, the husband were real sisters. Both under the Hindu Law as it stood before its codification and under the Hindu Marriage Act (No. 25 of 1955), they are related to each other within the prohibited degrees. They married in January, 1951, at Panipat and lived together up to the 24th of April, 1958, their last place of residence being Amritsar. A girl was born on the 14th of February, 1952, and a boy on the 9th of July, 1953. After the separation in 1958, the husband filed a petition under Section 9 of the Hindu Marriage Act on the 2nd of July, 1958, for restitution of Conjugal rights.
The defence taken by the wife was that they were not legally married and, therefore, she was not the lawful wife of the petitioner. On the 16th of August, 1958, the wife filed a petition under Section 488, Code of Criminal Procedure, for maintenance for herself and the children. In this petition, the pleading of the husband was that she was not his wife. The petition under Section 9 of the Hindu Marriage Act was dismissed on the ground that the marriage of Kanwaljit Kaur with N. K. Singh was void, they being related within the prohibited degrees. So far as the 488 petition was concerned, it was allowed by the Magistrate, who granted Rs. 45/- in all as maintenance to the wife and the children.
A revision to the Sessions Judge failed. On a further revision to the High Court, in view of the decision in Section 9 petition, the husband's petition was allowed so far as the maintenance granted by the Magistrate to the wife was concerned, but was dismissed with regard to the maintenance granted to the children. On the 12th of July, 1958, the present petition was filed under Section 25 of the Guardians and Wards Act (VIII of 1890), by N. K. Singh for the custody of the children. This petition was opposed by the mother. The guardian Judge allowed the custody to the father and against this decision, the mother has appealed.
2. The contention of Mr. Abnasha Singh, learned counsel for the appellant, is that the children are illegitimate children, the marriage being void, and, therefore, under Section 6 of the Hindu Minority and Guardianship Act (No. 32 of 1956), the mother is the lawful guardian of such children and therefore the father cannot be granted their custody and the view of the learned guardian Judge to the contrary is wrong.
3. On the other hand, Mr. Sarin, learned counsel, relies upon Section 16 of the Hindu Marriage Act, 1955, which makes children of void and voidable marriages as legitimate children. Section 16 is in these terms:-
'16. 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 shall be deemed to be their legitimate child notwithstanding the decree of nullity :
Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.' and it in turn refers to Sections 11 and 12 of the Act, which are in these terms:-
'11. Any marriage solemnised 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.
12. Any marriage solemnised, whether before or after the commencement of this Act shall be avoidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding; or
(b) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 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.
2. Notwithstanding anything contained in Sub-section (1), no petition for annulling a marriage -
(a) on the ground specified in Clause (c) of Sub-section (1) shall be entertained if-
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud 'had been discovered;
(b) on the ground specified in Clause (d) of Sub-section (1) shall be entertained unless the Court is satisfied -
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of suchcommencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.'
The other provisions to which reference may usefully be made are Section 5 and Sec 3(g) of the Hindu Marriage Act, and they are in these terms:-
'5. A marriage may be solemnised between any two Hindus if the following conditions are fulfilled, namely:.
(i) * * *
(ii) * * *
(iii) * * *
(iv) the parties are not within the degrees ofprohibited relationship, unless the custom or usagegoverning each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two;
(vi) * * *
3(g). 'degrees of prohibited relationship' -- two persons are said to be within the 'degrees of prohibited relationship'-
(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
(iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;
Explanation.- * * *
The combined reading of these provisions leavesno manner of doubt that the marriage in the present case having been performed or solemnised before the commencement of the Hindu Marriage Actcannot be declared void under Section 11 of this Act.Under the Hindu Law then prevalent when themarriage took place, it was void and unfortunatelyin this case in a judgment inter partes in proceedings under Section 9 of the Hindu Marriage Act, thatmarriage has been declared by a competent Courtto be void. In face of that decision, there is nooption but to proceed on the basis that the marriage is void.
The marriage being void and to such a marriage the provisions of Section 16 of the Hindu Marriage Act being not applicable, the children of such a marriage must be held to be illegitimate. Once the children are held to be illegitimate, then under Section 6 of the Hindu Minority and Guardianship Act, mother is the natural guardian of the children; and that being so and the children being in her custody, she cannot be deprived of the custody of the children. Therefore, in my view the learned guardian Judge was in error in allowing the petition under Section 25 of the Guardians and Wards Act. In view of the observations made above, I allow this appeal, set aside the judgment of the guardian Judge and dismiss the petition under Section 25 of the Guardians and Wards Act. In the circumstances of the case, the parties will bear their owncosts throughout.