V. Ramaswami, J.
1. The plaintiffs are the appellants. The first plaintiff is the widow of one Ramaswami, who died on 6-10-1969, The second and third plaintiffs are the daughter and son of the first plaintiff by Ramaswami. The suit was filed by the plaintiffs for declaration of title to the suit properties and for an injunction restraining the defendants from interfering with the plaintiffs' possession and enjoyment. The first defendant is the divided brother of Ramaswami. That the suit properties items 1 to 11 and 7 cents in item 12 were allotted to Ramaswami in a partition between Ramaswami and the first defendant has been found by the Courts below and that is not in dispute in this second appeal. Defendants 2 to 13 were not interested in the properties and therefore they did not defend the suit. The first defendant alone contended that Chinnathayee, the first plaintiff, was not the validly married wife of Ramaswami and that therefore neither her daughter nor her son, namely, the second plaintiff or third plaintiff was entitled to the properties. It is found by the Courts below that Chinnathayee was married to one Nagamuthu of Pagandai and that on an application filed by her to dissolve the marriage in O. P. 83 of 1960 on the file of the Court of the Subordinate Judge, Cuddalore, the marriage was dissolved by a decree dated 31-10-1960. It has also been found by the Courts below that the first plaintiff was married to the said Ramaswami within about two months from the date of the dissolution of the marriage of the first plaintiff with Nagamuthu. The Courts below therefore held that under the proviso to Section 15 of the Hindu Marriage Act, as it stood prior to its amendment by Central Act 68 of 1976, the marriage between Ramaswami and the first plaintiff was void, as having been contracted within one year from the date of the decree of the Court which dissolved the earlier marriage. On that ground, the suit was dismissed by the Courts below.
2. The main part of Section 15 of the Hindu Marriage Act as it stood originally conferred a right on either party to the marriage to remarry after the earlier marriage has been dissolved by a decree of divorce. But the proviso provided that a remarriage to be lawful must be after the lapse of one year from the date of the decree. Thus, a remarriage solemnised by either party in defiance, of the rule laid down in that section prohibiting the same for a period of one year from the date of the decree of the Court of first instance is null and void. But the question for consideration is, as to what is to happen to the children born out of that marriage. Section 16 of the Hindu Marriage Act dealt with consequences of a decree of nullity granted in respect of any marriage under Section 11 or Section 12. This is not a case where there is any decree of nullity of the marriage under Section 11 or Section 12 of the Act. The argument of the learned counsel for the appellant is that the principle of Section 16 is not to be restricted to a case of nullity granted to any marriage under S, 12 alone; but the legitimacy will have to be implied even in respect of a marriage which has become void by reason of the contravention of proviso to Section 15. In support of this contention, the learned counsel relied on a decision of the Supreme Court reported in Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581. In that case the husband filed a petition for dissolution of marriage under Section 10 of the Hindu Marriage Act read with Section 13(1)(viii) of the Hindu Marriage (Uttar Pradesh Sansho-dhan) Adhiniyam Act (XIII of 1962). Though the petition was originally dismissed, on appeal, by a decree dated 7-1-1964, the High Court granted dissolution of marriage. The wife filed a petition for special leave to appeal to the Supreme Court. On 7-4-1964 when that petition was pending the husband married another woman on 2-7-1964, and a son was born to him by this marriage on 20-5-1965. When the husband prayed the Supreme Court to revoke the special leave granted on the ground that he had already married another woman, the Supreme Court held that on that ground the special leave granted could not be revoked. It was pointed out to the Supreme Court that even under the main part of Section 15, where the marriage has been dissolved either party to the marriage can lawfully marry only when there was no right of appeal against the decree dissolving the marriage and the right to file an appeal by special leave granted could not be treated as a right of appeal vested in the party and that, therefore, the husband was within his right in marrying subsequent to the dissolution by the High Court. The Supreme Court observed that even though Section 15 may not apply in terms and it may not have been lawful for the husband to have married immediately after the High Court's decree as no appeal as of right from the decree of the High Court to the Supreme Court lies. In that case the Supreme Court further observed that still it was for the husband to make sure whether an application for such special leave was filed and he could not by marrying immediately after the High Court's decree deprive the appellant of the chance to present a special leave petition to the Supreme Court. If he takes such a risk, he cannot ask the Court to revoke the special leave granted on that ground. Having held so, the Supreme Court further observed -
'We need not consider the question as to whether the child born to the new wife on 20-5-1965, would be legitimate or not, except to say that in such a situation Section 16 of the Act may come to the aid of the new child.'
It is seen from the decision that though prima facie the Supreme Court was of the view that Section 16 would apply, they have not given any decision holding that Section 16 would apply to such a case. But it is not necessary for me to pursue this question as Section 15 and Section 16 have been later amended by the Marriage Laws (Amendment) Act, 1976, (Act 68 of 1976). Section 10 of this Act deleted the proviso -to Section 15. Section 39 of this Act has made a special provision relating to pending cases. Under this provision, all petitions and proceedings in causes and matters matrimonial which are pending in any Court at the commencement of the amending Act, shall be dealt with and decided by such Court if it is a petition or proceeding under the Hindu Marriage Act, then so far as may be, as if it had been originally instituted therein under the Hindu Marriage Act, as amended by this Act. In this suit the first defendant raised the question as to the validity of the marriage between Ramaswami and the first plaintiff under Section 15 of the Act. So far as the issue relating to the validity of the marriage is concerned, it will have to be decided only with reference to the provisions of the Hindu Marriage Act as it is a proceeding 'in causes and matters matrimonial'. The amendment by reason of Section 39 had been made to take retrospective effect in the sense that it is applicable to all pending proceedings and those pending proceedings are to be decided only as per the amended provision. If that is so, Section 15 of the Hindu Marriage Act will have to be read as if there is no proviso. The result is since there is a dissolution of the marriage and the first plaintiff married the deceased Ramaswami only after the dissolution of the marriage, though within a period of one year from the date of dissolution, the marriage is legal and valid. The first plaintiff as the legally married wife, and plaintiffs 2 and 3 as the legitimate children of Ramaswami, are, therefore, entitled to inherit the property of Ramaswmi, on his death. The plaintiffs are. therefore, entitled to the decree as prayed for in respect of Items 1 to 11 and 7 cents in item 12 which along are found to be the properties of Ramaswami. The electric motor and pumpset which are found to be kept in common will have to be enjoyed also in common between the parties. The plaintiffs will be entitled to the declaration in respect of this common right also in regard to the electric motor and pumpset. The second appeal is accordingly allowed, the judgments and decrees of the Courts below are set aside and there will be a decree to the above effect in the suit. No costs.