Lakshmi Ammal vs Ramaswami Naicker and Another

Panchapakesa Ayyar, J.—This appeal has been filed by Lakshmi Ammal, the petitioner in O. P. No. 83 of 1955, on the file of the District

Judge, Ramanathapuram, at Madurai, against the order of the learned District Judge dismissing as not maintainable, her petition under Ss. 11 and

17 of the Hindu Marriage Act XXV of 1955 for declaring the marriage of her husband Ramaswami Naicker, the first respondent, with

Krishnammal, the second respondent, void and illegal.

The facts are briefly these: Lakshmi Ammal, the appellant, was admittedly the legally wedded wife of Ramaswami Naicker. She had no children.

Ramaswami Naicker married the second respondent, Krishnammal, as his second wife after Act 25 of 1955 had come into operation. Lakshmi

Ammal wanted to get this marriage of her husband with Krishnammal declared void and illegal under S. 17 of the Act by filing this application

under Sec. 11. Both the respondents contended that she had no right to file an application under S. 11, as she was not ""a party to the second

marriage"" sought to be declared illegal and void. Accepting this contention the learned District Judge dismissed the petition with costs. Hence this

appeal.

I have perused the records and heard the learned counsel on both sides. Mr. Sundaram Aiyar, for the appellant, and Mr. G. N. Chari, for the

respondents, have argued the case fully and fairly. Mr. Sundaram Aiyar raised several contentions. The first was that as the marriage of

Ramaswami Naicker with Krishnammal was solemnised during the continuance of his marriage with the appellant Lakshmi Ammal, and would be

therefore null and void under Ss. 11 and 17, it would be unjust to deny the first wife the right to file an application under Sec. 11 for declaring this

marriage a nullity.

He argued that the clause ""party thereto"" in Sec. 11 would include, by inevitable extension any other wife or husband of the parties to the illegal

marriage and so a co-wife or co-husband. I cannot agree. The phrase is ""either party thereto"". That can only mean two persons, namely, the actual

parties to the second marriage-Ramaswami Naicker and Krishnammal. Any marriage requires only two parties, and no third party. It will be

contrary to sense and commonsense alike to bring in a co-wife, co-husband, concubine, keep, etc., on the ground that they also perform much the

same functions, as the husband and wife, the parties to the void marriage.

The fact is that the law does not take facts to mean the same things. Thus, a concubine may, for many purposes, no doubt, serve the purpose as a

wife, but will not be a wife in law. So too a co-wife cannot become ""a wife under the second marriage,"" for she is already a wife under the first

marriage, and cannot be married again to her husband, at any rate without the intervention of a divorce and cessation of marriage for some time.

The void second marriage was only between Krishnammal and Ramaswami Naicker, and the phrase ""either party thereto"" in Sec. 11 can only

apply to those two persons, and not to the appellant Lakshmi Ammal, the first wife, or to any others.

Then Mr. Sundaram Aiyar urged that the Hindu Marriage Act of 1955 was passed to benefit women, and save them from their husbands from

indulging in polygamy and taking unto themselves other wives, and that this Act also made such second marriage void and illegal, and the children

born of that second marriage illegitimate, and that, as the first wife thus got valuable rights under the Act, and as all rights should have

corresponding remedies, to work them out, as held by Broom in his Legal Maxims (see pages 117 and 118) and reinforced by the observations of

Chief Justice Holt in an Anonymous case reported in (1703) 87 E. R. 791, the first wife should be given the right to file an application under Sec.

11 of the Act, as she will otherwise be left remediless.

This argument too is unsustainable for two reasons. First of all, the first wife, the appellant, is not left remediless. She can file a suit, under the

ordinary law, for a declaration that the marriage of her husband Ramaswami Naicker with the second respondent Krishnammal is illegal and void,

under Act XXV of 1955, and that any children born to her would not have their rights, as legitimate children, in her husband''s properties, and that

Krishnammal also would not have the rights of a legally married wife. The mere fact that she will not be entitled to file an application under Sec. 11

as the section does not give her a right to do so, will not show that she is left remediless. She must only pursue the costlier remedy of filing a suit

under the ordinary law.

There is nothing extraordinary or illegal in this. Nor is the principle of equal law and equality before the law, guaranteed under Art. 14 of the

Constitution affected. There are several laws conferring rights on tenants, pannaiyals, etc. not conferred on people not answering to those

descriptions. There are several offences, like adultery, where only the husband and some others can file a complaint or compound the offence. To

say that any man in the street or city or country is equally interested in preventing the commission of adultery and therefore must be given the same

right to file a complaint or to compound the offence, like the husband will not be valid.

Again it is not only the first wife who acquires some rights under Act XXV of 1955. Even the first wife''s legitimate children will acquire some

rights, as their shares in the property may be affected by children born to the second wife, if held to be legitimate. It is not Mr. Sundaram Aiyar''s

contention that those legitimate children of the first wife also can file applications under S. 11. The legislature has restricted the summary remedy of

an application under Sec. 11 to be actual parties to the void marriage, so that third parties may not interfere harassingly by taking advantage of this

cheap remedy of an application.

I cannot agree, however, with Mr. Chari, learned counsel for the respondents, who urges that as the first wife has been given the remedy to

apply for divorce or judicial separation under Act XXV of 1955, she need not be and has not been given the remedy of getting the second

marriage itself declared void and illegal even by a suit. She will certainly have the ordinary right to file a suit to have the second marriage declared

void and illegal. Only she will have to go by the more expensive way of a regular suit, instead of by the cheaper remedy of an application under S.

Mr. Chari was unable to show how such a suit will not lie at her instance.

The next argument of Mr. Sundaram Aiyar was that, under Sec. 11, either party to the second marriage may present a petition for declaring the

marriage null and void, but that will not prevent other parties also from putting in a petition like this, as the word used is ""may"". I am afraid he is not

justified in this interpretation. What the word ""may"" shows is that the parties may, if they like, put in a petition under Sec. 11. They are not

compelled to do so, and they are also free to file a suit under the ordinary law for declaration and consequential relief, if they think it better to do

so. Thus, the use of the word ""may"" is sufficiently explained.

Mr. Sundaram Aiyar urged that, while he could understand this preference in favour of innocent and duped parties to a second and void

marriage, Sec. 11 does not confine the relief of an application to the innocent party, but extends it even to guilty parties, who had full knowledge

before marriage, and that innocent parties, like the appellant, should not be given a lesser right than such guilty parties. This argument too cannot

stand. Our law has moved very far from the ancient law of revenge and vengeance like the laws of Hammurabi. Laws are in modern times, more

concerned with remedying evils in an enlightened way, and have abandoned the savage way of hitting out against malefactors.

The law will not nowadays, compel anybody to live in sin or in crime and will allow them, and indeed encourage them, to get out of sin or crime at

the earliest possible moment. The parties vitally affected by the void marriage are, of course, the parties thereto, namely, the husband and wife,

though the first wife, the legitimate children by her, etc., may also be affected to a lesser extent. The law, in its wisdom, has given a preferential

treatment to the husband and wife vitally affected, and that comes under ""proper classification"" and cannot be called an ""illegal discrimination

offending Art. 14 of the Constitution, or any other Articles of the Constitution.

In the end, therefore, I confirm the order of the lower court holding that the appellant was not entitled to present on application under S. 11 of

Act XXV of 1955 for declaring the second marriage illegal and void but could only file a suit, if so advised. I dismiss this appeal, but, in the

circumstances, without costs, as this is the first time the point has come up for decision by this court.

FC/D.H.Z.

Appeal dismissed.