1. Shrimati Krishni Devi was married to Mangat on December 30, 1956. Some children were born out of the wedlock. Mangat died in 1964. Before getting married with Shrimathi Krishni Devi, Mangat had another wife living by the name of Shrimati Tulsan Devi and had some children for her. After Mangat's death, a dispute with regard to the heirs to his property arose. It was pleaded on behalf of Smt. Tulsan Devi and her children that the marriage of Smt. Krishni Devi with Mangat was a nullity as after the coming into force of the Hindu Marriage Act (hereinafter called the Act), Mangat could not contract a second marriage in the presence of his first wife living and, therefore, her children had no right to succeed to the estate of Mangat after his death. This plea was accepted by the revenue official who sanctioned the mutation of the land left by Mangat in favour of his children from Smt. Tulsan Devi only. Smt. Krishni Devi filed a petition under Section 11 of the Act for a decree of nullity of her marriage with Mangat on January 28, 1966. This petition was dismissed in limine by the Senior Subordinate Judge, Karnal, on April 18, 1966, on the ground that a petition under Section 11 of the Act could be filed only during the lifetime of the two spouses. Smt. Krishni Devi impleaded Smt. Tulsan Devi as the only respondent to her petition under Section 11 of the Act. Against that order, Smt. Krishni Devi filed F. A. O. 63-M of 1966, in this Court which was accepted by the learned Single Judge by order dated February 16, 1972. The order of the Trial Court has been set aside and the case has been remanded to it for decision on merits. Against that order, the present appeal under clause 10 of the Letters Patent has been filed by Smt. Tulsan Devi.
2. The learned counsel for the appellant has vehemently argued that a petition under Section 11 of the Act can be made only in the lifetime of the two spouses and cannot be made by one spouse after the death of the other. Section 11 of the Act reads as under:--
'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.'
This section does not expressly state that such an application can be made when both the spouses are alive. In order to strengthen his argument, the learned counsel refers to Section 20(1) of the Act, which reads as under:--
'20(1). Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and shall also state that there is no collusion between the petitioner and the other party to the marriage.' The argument, is that it has to be stated in every petition that there is no collusion between the petitioner and the other party to the marriage. The learned counsel forgets that this requirement is subject to the nature of the case, that is, such a statement is to be made only if the nature of the case permits. If the nature of the case does not permit it is not necessary to make such an averments. When an application under Section 11 of the Act is filed by one spouse after the death of the other, the nature of the case does not permit any averment that there is no collusion between the petitioner and the other party to the marriage. By reference to Section 20(1) of the Act, it cannot be held that a petition under Section 11 of the Act cannot be filed by one spouse after the death of the other. This view is supported by the following observations of a Division Bench of the Madras High Court in Thulasi Ammal v. Gowri Ammal AIR 1964 Mad 118, while reversing the judgment of the learned Single Judge:-- '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 one of the spouses to the marriage is no longer alive, it will be not open to the widow to seek for a decree of nullity of her marriage with Periaswami. 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 Periaswami 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, this appeal is dismissed. There will however be no order as to costs.'
In that case, the suit had been filed by the second wife as well as her daughter for a declaration of title and for recovery of possession of half of the estate of Periaswami. The wife sought declaration of nullity of her marriage on the ground that when she got married to Periaswami, he had another wife living. The learned District Munsif, who tried the suit, held that the wife had contracted the suit, held that the wife had contracted a wholly void marriage by reason of Section 5(1) read with Section 11 of the Act and in so far as her claim was concerned, the suit was rejected. In the case of the daughter, it was held that she was entitled to a share in the property. The order dismissing the suit of the wife that her marriage with Periaswami was null and void was upheld by the Letters Patent Bench. The learned Single Judge in that case had held that decree of nullity of her marriage with Periaswami could not be obtained by the wife after the death of the husband which view was not accepted by the Bench. The judgment of the learned Single Judge is reported as Gowri Ammal v. Thulasi Ammal, AIR 1962 Mad 510.
3. Section 16 of the Act is very relevant for the decision of this point. It reads as under:--
'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.'
From the language of this section it is clear that the off-spring of a void marriage are to be considered as legitimate children notwithstanding the decree of nullity, if it is granted under Section 11 or Section 12 of the Act. A child of such a marriage has been given the right of inheritance to the property of its parents and not of any other relation. Since the right of the children of Smt. Krishni Devi to inherit the property of the father was denied by Smt. Tulsa Devi, it was necessary for Smt. Krishni Devi to obtain the decree of nullity in order to bestow the character of legitimacy on her children from Mangat who were begotten during the subsistence of that void marriage. The only persons interested in denying that status to Smt. Krishni Devi and her children are Smt. Tulsan Devi and her children and, therefore a petition under Section 11 of the Act was necessary to be filed to safeguard the interests of the children of Smt. Krishni Devi from Mangat. We, therefore, hold that it is not the requirement of Section 11 of the Act that a petition for a declaration of nullity of marriage should be made during the lifetime of both spouses to the marriage. Such an application can be made by one spouse even after the death of the other. The first submission made by the learned counsel is, therefore, repelled.
4. The second submission made on behalf of the appellant is that Smt. Krishni Devi could file a civil suit but not a petition under Section 11 of the Act after the death of her husband. We find no merit in this submission either. The observations from the Madras Judgment, set out above, clearly show that the suit filed by the second wife of Periaswami for a declaration of nullity of her marriage with him was dismissed and she was left to take such steps as may be open to her to have a declaration of nullity of her marriage. If such a declaration could be granted in the suit, her suit could not have been dismissed and would have been decreed. The dismissal of the suit by the Division Bench of the Madras High Court clearly leads to the conclusion that the learned Judges were of the opinion that the proper remedy for the wife was to file a petition under Section 11 of the Act, although they did not expressly say so. No provision of the Act has been brought to out notice barring the jurisdiction of the Court under the Act from entertaining a petition under 11 of the Act by one spouse after the death of the other. Every application under Section 11 of the Act is cognizable by the Court having jurisdiction under the Act and not any other Court. We are, therefore, of the opinion that a suit in a Civil Court was barred and the petition under Section 11 of the Act filed by Smt. Krishni Devi was competent and it had been wrongly rejected by the learned Trial Court.
5. For the reasons given above we find no merit in this appeal which is dismissed with costs.
6. Appeal dismissed.