Nagavva vs Parvathavva

M.S. Nesargi, J.—The Appellant Naggavva, who was Petitioner in Matrimonial Case No. 45 of 1968 on the file of the Civil Judge Belgaum, has, in this appeal, challenged the judgment passed by the learned Civil Judge in the said case holding that her petition filed u/s 11 read with Section 5(i) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ''Act'') is not maintainable.

The Appellant averred in her petition that she married one Madivalappa in the year 1965 in Mudhol, Bijapur District. At that time the Respondent Parvathavva alias Gowravva was alive. She is the first wife of Madivalappa. In view of these facts according to the Appellant, Clause (i) of Section 5 of the Act was violated and therefore her marriage with Madivalappa was void. She further stated in her petition that the said Madivalappa died on 24-7-1967. She prayed for a decree of nullity that her marriage with Madivalappa was null and void. This petition was presented by her on 30-8-1968.

The Respondent Parvathavva alias Gowravva was made a party Respondent to the said petition u/s 11. She got filed I.A. No. 1 in that petition stating that the petition was not maintainable as it was instituted long after the death of madivalappa. The decision in Gowri Ammal and Another Vs. Thulasi Ammal and Another, was relied upon in support of this contention. The learned Civil Judge, though the said decision was disapproved in Letters Patent Appeal filed against that judgment, as reported f in Thulasi Ammal by mother and guardian Kannu Ammal Vs. Gowri Ammal and Others, preferred to follow the reasoning in Gowri Ammal and Another Vs. Thulasi Ammal and Another, and concluded that the petition was not maintainable. It is this judgment that is challenged in this appeal.

Sri. R.M. Patil, the learned Counsel appearing on behalf of the Appellant, urged that the learned Civil Judge was not right in accepting the reasoning found in the decision in Gowri Ammal and Another Vs. Thulasi Ammal and Another, and ignoring the fact that a Bench of the Madras High Court had, in an appeal, disapproved of that decision. He further urged that nowhere in Section 11 of the Act it is found that both the spouses to a marriage should be alive at the time of presentation of a petition under the said provision. He strongly contended that Section 11 deals with the marriage status of a spouse and not with, anything else and therefore one of the spouses, interested in getting her or his status decided, could file a petition u/s 11 seeking a decree of nullity of the marriage on the ground that it was void by virtue of either of the Clauses (i), (iv) or (v) of Section 5 of the Act.

Mr. K.I. Bhatta, the learned Counsel appearing on behalf of the Respondent, argued that a reference to Section 20 of the Act would make it abundantly clear as to what should be the contents of the petition. It should state certain particulars, as the nature of the case would permit, and one of those particulars is that there is no collusion between the Petitioner and the other party to the marriage. He expanded this argument and urged that if such a statement has to be made under the provisions of this Act both the spouses will have to be necessarily alive, if not a r statement to the effect that there was no collusion between the Petitioner and the other party to the marriage cannot be contemplated to be made as laid down by Section 20(1) of the Act. Sri K.I. Bhatta further urged that in case the legislature in s its wisdom had thought it fit that a petition u/s 11 could be filed even if one of the spouses were not to be alive, it would have clearly provided in that manner and therefore the reasoning put forward by Ramakrishnan, J. in AIR 1962 510 at p. 511 would aptly apply.

A reading of Section 11 of the Act makes it clear that such a decree of nullity can be asked for by one of the spouses to the marriage provided such a marriage is hit by any of the Clauses (i), (iv) or (v) of Section 5 of the Act, It nowhere lays down that both the parties to the marriage should be alive at the time of the institution of the petition u/s 11 of the Act. All that it has specifically made clear is that a petition u/s 11 has to be instituted by one of the spouses only and none else. The contention of Sri K.I. Bhatta chat in view of Section 20 of the Act it has to a be inferred that both the spouses to a petition u/s 11 should be alive at the time of institution of such a petition has, in our opinion, no force because, the facts that are required to be stated in a petition as required u/s 20 can as well be stated even in cases where one of the spouses is dead. It is no doubt true that in such a case where one of the spouses is dead, it cannot be stated as and fact that there is no collusion between the parties to the marriage but such a statement of fact cannot be called for, because the other party would not be alive at all. When the other party is not alive then, the question of collusion does not at all arise as the nature of the case would not permit statement of such a fact being made.

Section 16 of the Act lays down that:

Where a decree of nullity is granted in respect of any marriage u/s 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....

Consequences of decrees passed by virtue of Sections 11 and 12 of the Act are not laid down in both the sections. The effect of the decrees passed under Sections 11 and 12 of the Act is found in Section 16 of the Act. It is therefore clear that Sections 11 and 12 of the Act have been in corporated in order to confer certain benefits on children born out of such wedlocks which are hit by the provisions of Section 5(i) of the Act. The legislature in its wisdom has thought it fit to confer the benefit of legitimacy on such children, who otherwise would be illegitimate because the marriages out of which they are born being void. The only restriction placed by the legislature is in insisting that such a decree should be secured only by one of the parties to the marriage and by nobody else. It if because of this reasoning that the legislature has provided in Section 16 of the Act that a decree of nullity granted in respect of any marriage only u/s 11 or Section 12 of the Act would secure such a benefit to such children born out of such wedlocks. If the contention of Sri K.I. Bhatta is taken to its logical end. it would lead to an anomalous inference rendering Section 16 illusory.

On reading of Section 16, it is plain that even the children conceived before the granting of the decree u/s 11 or Section 12 of the Act would become legitimate. If one of the spouses dead either at the time of the presentation of the petition u/s 11 or during the pendency of the petition u/s 11, then if the contention of Sri K.I. Bhatta is accepted the benefit that is sought to be given to the children born out of such wedlock would Knot be available to those children. That is why we say that Section 16 would be rendered illusory. That would not be the proper, way of interpreting the provisions in a statute. In Thulasi Ammal by mother and guardian Kannu Ammal Vs. Gowri Ammal and Others, the Bench of the Madras High Court has clearly disapproved the decision of Ramakrishnan, J. in Gowri Ammal and Another Vs. Thulasi Ammal and Another, Their Lordships have held that the point whether a petition u/s 11 could be instituted by the wife after the death of her husband did not at all arise in the Said proceedings and therefore Ramakrishnan, J. was not called upon to decide that question. Further on, their Lordships observed that the proposition that such a petition would not be maintainable after the death of a husband does not find support from any of the provisions of the Act. Even after expressing in this manner, their Lordships have made it explicit that as the point did not arise for consideration, they had reserved their final opinion on the point. Even though their Lordships did not ex- press their final opinion in the said decision, we are respectfully in agreement with the reasoning propounded by their lordships in the said decision.

In view of the foregoing reasons, we allow this appeal and set aside the order passed by the learned Civil Judge, Belgaum in Matrimonial Case No. 45/68. We direct that the records be remitted to the Court of the Civil Judge, Belgaum for disposal of the case according to law No costs in the circumstances of the case.