1. This is an appeal from the judgment and decree of Ramakrishnan, J.; Seo : AIR1962Mad510 . reversing the judgment and decree of the learned Subordinate Judge of Mayuram. The facts are briefly these. The appellant here was the second plaintiff in the suit. She is admittedly the daughter of Periasami, deceased by his second wife, which marriage was contracted during the subsistence of a valid marriage, with the first wife, the first respondent herein. The suit was laid by the second wife, as well as the appellant, her daughter for a declaration of title and for recovery of possession of half the estate of Periasami. The learned District Munsif who tried the suit held that the first plaintiff had contracted a wholly void marriage by reason of Section 5(1) read with Section of the Act XXV of 1955. In so far as she was concerned, her claim in the suit was rejected. In the case of the second plaintiff, the daughter born of such a void marriage, however, the learned District Munsif apparently took the view that she was entitled to a share in the property. On appeal, the learned Subordinate Judge of Mayuram accepted that conclusion as correct, being of the view that Section 11 of the above said Act did not warrant the inference that the child born of such a marriage should be regarded as illegitimate. The first widow and the minor son of Periasami by her, who were the respondents, brought the matter in appeal to this Court, and Ramakrishnan, J., in his judgment held that in so far as Section 16 of Act XXV of 1955 came to the rescue of children born of void and voidable marriages, it made provision only in cases where a decree of nullity had been obtained and only the issues of a marriage, in respect of which there was a decree of nullity could in the eye of law, be regarded as legitimate, entitled to succeed to the estate of the deceased father. He observed 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. That, in the opinion of the learned Judge was a matter which the Legislature alone could rectify and that it was not open so to interpret Section 16 as amounting to conferring the right of legitimacy on children born of void marriages without a decree of nullity having been obtained.
2. It is against this judgment that the present appeal has been filed by the daughter born of void marriage of Periaswami, with Kannu Aramal, who figured as the first plaintiff in the suit.
3. Mr. Sundaralingam is really unable to induce us to hold that the interpretation that has been placed upon Section 16 of the Act by the learned Judge is in any way erreneous. The section clearly contemplates the case where a decree of nullity is granted in respect of any marriage under Section 11 or Section 12. It is only in such an event that any child begotten or conceived before the decree is made shall be deemed to be a legitimate child born of that marriage notwithstanding the decree of nullity. In so far as a decree of nullity has not been obtained, no part of the section can be invoked for the purpose of legitimatismg an issue born of such a void marriage. There is hardly any scope for argument as the section is quite clear that it applies only to cases where proceedings have been set on foot for obtaining a decree of nullity, and a decree of nullity has, in fact, been granted. Ramakrishnan, J., examined the analogous provisions of the English Acts and the development of the law in interpreting the specific provision that is now in question. His conclusion, which has already been stated above, can hardly be challenged.
4. 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 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 its 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. There will however be no order as to costs.