D.K.R. Chinnaswamy Sah vs Rajamba Bai

Srinivasan, J.—The plaintiff-appellant sued for a declaration that the respondent is not his wife & for a permanent injunction restraining her

from calling herself the plaintiff''s wife arid taking or confirming any proceedings against the plaintiff in that capacity. The case was that the plaintiff

married the respondent in 1953, though his first wife was then, and is still, alive. Apparently, some disputes arose between the two subsequently,

and, the respondent filed an application in the Magistrate''s court u/s 488 Cri. P. O. This seems to be the reason for the plaintiff''s filing the suit for

the declaration and injunction.

Before the trial court, it was alleged by the plaintiff-appellant that there was no valid marriage by reason of the absence of the requisite religious

ceremonies; but that has been found against by both the trial court and the lower appellate court. The position accordingly is that, while no doubt a

proper form of marriage was gone through between the parties, the marriage itself was claimed to be void by reason of Act VI of 1949.

The trial court granted a decree for the declaration and injunction sought; but, on appeal, the learned Additional City Civil Judge came to the

conclusion that, on the principle of pari delicto, the plaintiff ought not to be granted the relief. It is against this decree that the present appeal has

been filed.

The marriage having been contracted during the period when Act VI of 1949 was in force, there is no doubt whatsoever that, u/s 4 (1) thereof,

that marriage was void. Act VI of 1949 was repealed by the Central Act XXV of 1955. This later Act, however, dealt with marriage contracted

only subsequent to the passing of that Act. Notwithstanding the repeal of Act VI of 1949, there is no doubt that the rendering of a marriage void,

during the continuance of Act VI of 1949 was fully effective and a marriage which was void under that Act could not possibly become valid by

reason of the repeal of that Act. It has been correctly so found by the learned Additional City Civil Judge. The only question, therefore, is whether

the lower appellate court was right in the view that it took that the plaintiff ought not to be granted the reliefs that he prayed for.

It seems to me that, where the status of a party is concerned, the principle of pari delicto cannot possibly be relied on in refusal of the grant of a

declaration sought. It will be seen that, even under the Central Act, Section 11 enables either party to a marriage to present a petition for a

declaration that it is a void marriage, if such marriage contravenes any of the conditions specified in Clauses (iv) or (v) of Section 5 of that Act.

Obviously, the Legislature took the view that, notwithstanding that either the one or the other or both parties of a void marriage should have been

guilty of contravention of the provisions of the Act, yet, either party could, on a petition presented under that section, obtain the declaration of the

void nature of the marriage.

That being so, the general principle of pari delicto, upon which the lower appellate court has relied, should not normally have any application in

cases of this nature. As argued by learned counsel for the appellant, this principle would have far-reaching effect only in cases of contracts of a

different kind, where, on the basis of an illegal contract voluntarily and consciously entered into, a person seeks the assistance of the court to

recover any property. In such cases, the court could, in the proper exercise of its discretion, rightly refuse to grant the relief. But the present case is

not of that kind.

When, as I have pointed out, even the Legislature has not chosen to place any disability upon a party to a void marriage, -- however guilty that

party might be -- In seeking the assistance of the Court to have such a marriage declared void, it is not proper that on the general principle of pari

delicto, the declaration should be refused. I am of opinion, therefore, that, when once it is found, -- and that fact is not denied by either side ---

that the marriage is void ab initio by reason of Section 4(1) of Act VI of 3949, the plaintiff is entitled to the declaration,

I am, not, however, prepared to hold that he is also entitled to the other relief of injunction as well. It would be open to him to plead in the

Magistrate''s court that the respondent, not being his wife, is not entitled to maintenance. The other declaration that he seeks, namely, to restrain

her from calling herself as the plaintiffs wife, is also refused, as there is no allegation that the respondent is doing so, with the result that any interest

of the plaintiff is jeopardised.

In the result, the decree of the lower appellate court is set aside, and that of the trial court restored only to the extent of granting a declaration

that the marriage of the respondent with the plaintiff is void. In the circumstances, the appellant will bear the costs in this court; and the order as to

costs made by the lower appellate court will stand. No leave.