Valliammal vs Kamalambal and Others

T. Sathiadev, J.—This appeal is preferred by plaintiffs in O.S. No.3116 of 1979 on the file of City Civil Court, Madras. Defendants are the

respondents herein.

The suit was filed by appellants/plaintiffs (ranking of parties as in suit) for recovery of possession of the suit property and for an injunction

restraining the defendants from collecting rents from tenants, and to pay a sum of Rs.4,200 which had been unauthorisedly collected, that too by

first defendant.

In the plaint it is claimed as follows: Plaintiff is the lawfully wedded wife of one Raju Mudaliar, and their marriage took place on 23.8.1934, and

plaintiffs 2 to 8 are the children born to them. On 1.5.1949 he married the first defendant as his second wife by going through some form of

marriage in a temple at Tiruvanmiyur. The ceremonies were not in accord with Hindu rites and customs. At the time when a second marriage was

prohibited under the provisions of Hindu Prevention of Bigamous Marriage Act (Madras Act 6 of 1949), which had come into force on

23.3.1949, he having married her, she was not his lawfully wedded wife. She was at best a permanent kept-mistress. Defendants 2 and 3 born to

them are illegitimate children, and therefore none of the defendants have any right to the properties left behind by Raju Mudaliar, who died on

7.2.1979. Plaintiffs 1 to 8 are the nearest heirs under the Hindu Succession Act, 1956. Defendants 2 and 3 are not entitled to inherit his properties

because Section 16 of Hindu Marriage Act will not apply to them. Since defendants are in unlawful possession of the plaint schedule properties,

plaintiffs have filed the present suit.

Defendants took up the stand that the marriage between the first defendant and Raju Mudaliar was performed according to Hindu rites On

7.5.1948 (sic) (1949 ?) at Tiruvanmiyur Temple, and that the said marriage was not void under Madras Act 6 of 1949. First defendant and the

plaintiffs and the children born to them were all living together in the same premises at St. Mary''s Road for about 8 years, and that the mother of

Raju Mudaliar was also alive, and that the house in Narayana Chetty Street was built by him for the benefit of the first defendant and children were

born to hen The suit property was purchased three years after the marriage for her benefit. If really the marriage was void, the plaintiffs would not

have kept quiet since 1949. Hence the suit is liable to be dismissed.

Trial Court dismissed the suit by holding that Raju Mudaliar married first defendant on 7.5.1949 at Tiruvanmiyur Temple, and the said marriage

was not void under Madras Act 6 of 1949, and that the plaintiff, defendants, Raju Mudaliar and his mother were all living together as one family;

and that during the life time of Raju Mudaliar, the status of the first defendant was never questioned. On appeal in A.S. No. 184 of 1981, the

learned Judge by relying upon the date of marriage furnished by Raju Mudaliar in the will (Exhibit A-3) dated 21.10.1966 held that he married the

first defendant only on 1.5.1949, and hence, the said marriage was hit by Madras Act 6 of 194y, which became a statute on 23.3.1949.

Consequenty it was held that she would not be entitled to any share, but her two daughters viz. defendants 2 and 3 are equally entitled to a share

along with the plaintiffs, though they are illegitimate. Reliance was placed on Section 16(3) of the Hindu Marriage Act for granting the said relief.

Taking note of the fact that parties are co-sharers, except to pass a declaratory decree, the learned Judge directed the parties to obtain

appropriate reliefs by filing a suit for partition and separate possession. Aggrieved against this decision, this Letters Patent Appeal is preferred by

plaintiffs.

Mr. T. Viswanatha Rao learned Counsel for the plaintiffs, submits that, haying held that Raju Mudaliar married first defendant on 1.5.1949, and

such a marriage is hit by Madras Act 6 of 1949,'' defendants 2 and 3 could not have been granted any declaratory relief regarding their share;

because as illegitimate children, they cannot be treated on a par with plaintiffs 2 to 8, because Section 16(3) of the amended Hindu Marriage Act

would not apply to the facts and circumstances of this case. Any marriage of this character preceding Hindu Marriage Act. 1955 would not come

within the folds of the relief extended u/s 16(3) of the Act It is only prospective in its applicability, and hence, the rights of defendants 2 and 3

would be as was obtaining under the Hindu Law, before the passing of the Hindu Marriage Act, and the Hindu Succession Act.

Mr. T.R. Mani, learned Counsel for the defendants, would submit that the purpose of introducing amendment to the Act in 1976 was to extend

the benefit of legitimisation available to bastards. When an amendment was made not only to Hindu Marriage Act but also to Special Marriage

Act, it was intended to be as far as possible beneficial, and in essence it is retrospective, because as held by Courts, the mischief which is sought to

be removed by the amendment, will determine the scope of the amendment, and that if the benefit is confined only to children of bigamous

marriages under Hindu Marriage Act and not to children born out of such marriages which had taken place prior to it, it would offend Aft. 14 of

the Constitution. He would also touch upon the trend of legislations intended to bring about social reforms and how to eschew arbitrariness, and as

how the object of an amendment, require to be interpreted to eradicate the mischief which it seeks to avoid, and that clear interpretation, if applied,

would remove the concept of bastard was, which no human being would ever like to have.

Section 16 of the Hindu Marriage Act, 1955 was amended by, the Marriage Laws of Amendment Act, 1976, with effect from 27-5-1976 to

the following effect:

Notwithstanding that a marriage is null and void u/s 11, any child of such marriage who had been legitimate if the marriage had been valid, shall

be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a

decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition

under this Act.

Where a decree of nullity is granted in respect of a voidable marriage u/s 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 at the date, of the decree it had been dissolved instead of being annulled, shall

be deemed to be their legitimate child notwithstanding the decree of nullity.

Nothing contained in sub-S (1) or sub-S (2) shall be construed as conferring upon any child of a marriage which is null and void or which if

annulled by a decree of nullity u/s 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing

of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his

parents.

Section 11 of Hindu Marriage Act reads as follows:

Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto

(against the other party) be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (1), (iv) and (v) of

Section 5.

Regarding the finding as to when Raju Mudaliar was married to first defendant, as pointed out by the learned Judge, except for the first

defendant and her brother, none has come forward to speak about the marriage, and therefore, having rightly characterised their evidence as

interested, reliance was placed on the unimpeachable contents of Exhibit A-3 will dated 21.10.1967. It was executed by Raju Mudaliar in favour

of first defendant, long before disputes arose between the parties. No doubt it was revoked under Ex.A4 dated. 15.11.1974, but even then, as a

piece of evidence, its content were relied upon, and in this view, the learned Judge had rightly concluded that this piece of documentary evidence

clinchingly proves that the marriage took place only on 1.5.1949. Madras Act 6 of 1949 prohibiting bigamy came into force on 23.3.1949. The

marriage which took place on 1.5.1949 being invalid and inoperative in law, the children born out of such relationship are illegitimate.

It is contended by Mr. T.R. Mani, learned Counsel for the defendants, that this illegitimacy would not disentitle them to get an equal share like

that of legitimate children of Raju Mudaliar, in view of Section 16 of the Hindu Marriage Act, which had been amended with effect from 27.5.1976

by the Marriage Laws (Amendment) Act, 1976 (Act 68 of 1976). He submits that children born out of such bigamous relationship, by virtue of

this amendment, are entitled to be treated on a par with that of the legitimate children. Mr. Viswanath Rao, learned Counsel for the plaintiff, would

submit that Section 16, a non-obstanti provision, deals with only a specific class of illegitimate children born out of a marriage which will be null and

void u/s 11 and confined to children, who were born before or after the commencement of the Amendment Act i.e. before or after 27.5.1976. As

for children born before that date, it is confined to the off-springs of the marriages which had been ""solemnised after the commencement of the

Hindu Marriage Act, 1955 i.e. after 18.5.1955 and not in respect of marriages which had taken place antecedent to that date.

Learned Counsel would first refer to the decision of the Division Bench reported in Shantaram Tukaran Patil and Another Vs. Dagubai

Tukaram Patil and Others, which, in dealing with the scope of Section 16 of the Hindu Marriage Act, has held that whether a decree of nullity is

passed or not, a child born out of a marriage which is void under the provisions of the Act is the legitimate child. It was further held that it does not

acquire a right to property by birth which a legitimate child would get; but after legitimacy conferred upon him u/s 16(3) of the Act, it enables him

to get an equal share in the property of his parents. Such a right is conferred (? confined) only to separate property and not in respect of co-

parcenary property in which the parent has a share. In the instant-case, the properties are the self-acquired properties of Raju Mudaliar.

A Division Bench of this Court in Sivagnanavadivu Nachiar v. Krishnakanthan (1966) 1 MLJ 529 : 89 L.W. 706., in dealing with Section 16

held that such a right is available only in respect of separate properties, and that the right conferred u/s 16 is confined only to the properties of the

parents, and but for the declaration found in Section 16, the illegitimate children would not be entitled to any share at all in the property of the

father or inherit any other property.

In A.P.K. Narayanaswami Reddiar Vs. Padmanabhan and Others, , in dealing with Section 4(1) of Madras Hindu (Bigamy Prevention and

Divorce) Act, 1949, a Division Bench of this Court held that, even if the factum of marriage is established, and the form of it is in accordance with

the personal law but because it is bigamous, it is void, and hence the woman who is a contracting party, could never be given the status of a wife.

In Muthayya v. Kamu 1980 I M.L.J. 107 (D.B), by referring to Madras Act 6 of 1949, it was held that, if the marriage had taken place at any

time subsequent to 29.3,1949, then such a marriage could not be valid as far as Madras State is concerned, and therefore, children born out of

such a marriage cannot be treated as legitimate children.

The learned Judge having held that the marriage took place on 1.5.1949 is invalid as it is hit by Madras Act 6 of 1949; first defendant cannot

claim to be a lawfully wedded wife, nor defendants 2 and 3 as legitimate children of late Raju Mudaliar, none of the defendants can claim any share

in the separate properties of Raju Mudaliar, for the reasons stated hereunder.

So far as defendants 2 and 3 are concerned, they are his illegitimate children. But whether they would get any share like that of plaintiffs 2 to 8

or get only lesser share or no share at all will depend upon applicability of Section 16 of the Hindu Marriage Act, as amended. For this purpose,

Mr. T.R. Mani, learned Counsel for the defendants, would first refer to the decision reported in Smt. Kanwal Jit Vs. N.K. Singh and Others, ,

wherein a learned Judge of Punjab High Court held that when a marriage is void, and to such a marriage, provisions of Section 16 not being

applicable, the children of such a marriage are illegitimate. In that case, the marriage was between persons of prohibited degree, and it took place

in January, 1951, whereas the Hindu Marriage Act came into force on 18.5.1955. As Section 16 then stood, in a guardianship matter, it was held

that the said children are illegitimate. This decision is of no assistance to the instant case. It is relied on to show as to how and what lacunae existed

in the Act, and why the amendment was made subsequently.

Thulasi Ammal v. Gowri Ammal (1964) II M.L.J. 228 (D.B.), proceeded on the basis that unless a decree of nullity is obtained, no part of

Section 16 could be invoked for legitimatizing an issue born of such a void marriage. In Gowri Ammal and Another Vs. Thulasi Ammal and

Another, , a learned Judge of this Court held that decree of nullity of marriage u/s 11 cannot be passed after the death of one of the spouses. In

Ramayammal v. Muthammal (1974) II M.L.J. 34., the learned Judge pointed out:

The position and status of children of void marriage should obviously be the same, whether the marriage is declared a nullity u/s 11 or other wise...

These decisions are referred to for the purpose of showing that the trend of the law as interpreted by the Courts was not conducive to

legitimize illegitimate children under certain circumstances, and therefore the amendment having been made in 1976, the amended section calls for a

wider interpretation so as to extend the benefit to children born out of bigamous marriages, which had taken place even before the amendment. As

to why wider scope should be given and how retrospective nature of the amendment could be implied, he relies upon the following three decisions.

In Laxmibai v. Limbabai A.I.R 1983 Bom 223, in dealing with the amended Section 16, it was held that this provision contemplates disability

suffered by such children as far as the property of their parents is concerned. It was a case in which one Nagappa, who was already having a first

wife, had married one Laxmibai on 24.5.1955, and it was held that such a marriage was void. Hence, it was not a case wherein the marriage had

taken place prior to the coming into force of the Hindu Marriage Act on 18.5.1955. Therefore, there was no question of retrospective applicability

arising in such a case.

A Division Bench in Surjit Singh Vs. Mohinder Pal Singh and Others, , held that Section 16 is retrospective, and whether or not a decree of

nullity is granted, and whether or not the marriage is held to be void otherwise than on a petition under the Act, a child born out of such marriage is

a legitimate child. It was also a case wherein the alleged marriage took place after the coming into force of the Hindu Marriage Act Hence the

retrospective effect considered was in respect of marriages which had taken place within the four corners of Section 11, which states that it would

apply in respect of marriages solemnized after the commencement of the Act Therefore, there is no indication anywhere in Section 16 that

retrospective effect could be anterior to the coming into force of the Hindu Marriage Act itself. That the Act itself was not retrospective in nature

should not be lost sight of. Hence, by amending the provision, i.e., Section 16 in 1976, there could be no question of extending retrospective

applicability in respect of marriages which have taken place before the coming into force of the Act i.e. before 18.5.1955. At this juncture, the

words ""any child of such marriage"" are also to be taken note of, because these words crystallize as to with regard to what categories of marriage

and out of which children born acquire the statutory legitimacy for a limited purpose. Hence, the plea that by the amendment made in 1976 to

Section 16, it applies retrospectively in respect of such types of marriages which are envisaged u/s 11, and which had taken place prior to the

coming into force of the Hindu Marriage Act i.e. before 18.5.1955 is without any substance.

Yet, Mr. T.R. Mani, learned Counsel for the defendants, had referred to certain passages in page 409 of 12th Edition of Maxwell on the

Interpretation of Statutes to show that the mischief sought to be remedied by an amendment should not be overlooked. The passages relied upon

by him are extracted hereunder.

The true reason of the remedy, and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance

the remedy, and to suppress subtle inventions and evasions of continuance of the mischief, and pro private commode, and to add force and life to

the cure and remedy, according to the true intent of the makers of the Act, pro bono public...

He would also refer to a passage in page 97 Craies on Statute Law (7th Edition) which is as follows:

It is proper also to consider (1) the state of the law which it proposes or purports to alter; (2) the mischief which existed, and which it was

intended to remedy; and (3) the nature of the remedy provided, and then to look at the statutes in pari materia as a means of explaining this statute.

These are the proper modes of ascertaining the intention of the legislature.

He refers to the decision reported in Srinivasa Ayyangar by Power of Attorney Agent S. Jambagathammal Vs. Revenue Court and Others, ,

wherein the scope and operation of Tamil Nadu Acts 14 of 1952 and 25 of 1955 came to be elaborately considered. On a consideration as to

whether the later enactment did not impliedly repeal the provisions of the Estates Land Act, and that occupancy ryots in estates are unaffected by

the provisions of the Cultivating Tenants Protection Act, it was held that the intention of the Legislature could be looked into, and in doing so, it is

held that the Cultivating Tenants Protection Act is designed to protect the cultivating tenants from unjust eviction as found in its preamble.

Lastly, he refers to the decision reported in Dineshchandra Jamnadas Gandhi Vs. State of Gujarat and Another, ., which holds that the

construction appropriate to a social defence legislation is therefore one, which would suppress the mischief aimed at by the legislation and advance

the remedy.

Merely because Parliament considered that illegitimacy should not be foisted in respect of children born out of marriages which are hit by

Section 11 of the Act, it does not mean that it had intended to legitimize offsprings from out of bigamous marriages which had taken place prior to

the coming into force of the Hindu Marriages Act. The intention was to remove the mischief only to a limited extent. It is expressly stated in Section

16 that it is confined to a child born out of ''such'' a marriage, which means marriages which are covered by Section 11. Section 11 is categoric

that it deals with only certain categories of marriages which are solemnized ""after the commencement of this Act."" Therefore, the legislative Intent

was to grant relief only to limited instance''s i.e., only in respect of those children born of marriages solemnized on and after 18.5.1955 and

covered by Section 11 instances. Therefore, when Raju Mudaliar had married the first defendant on 1.5.1949, Madras Act 6 of 1949 having been

in force prohibiting the said bigamous marriage being gone through, and the Act having been passed prohibiting bigamy; it was not, a marriage

solemnized as contemplated u/s 11 of the Hindu Marriage Act, and in turn Section 16 cannot be invoked. Therefore, the learned Judge was in

error in applying Section 16 of the Hindu Marriage Act and granting relief to defendants 2 and 3.

Defendants 2 and 3 being the illegitimate daughters, they have no right to inherit or claim any share in the properties of their father.

In Balraj Singh Vs. Jai Karan Singh and Others , and Bhikya v. Babu ILR 1908 Bom.32 it has been held that an illegitimate daughter succeeds

to her mother''s property, but not to her father''s property. Defendants 2 and 3 are not co-owners with plaintiffs. Once it is held that first defendant

was not lawfully married to Raju Mudaliar and defendants 2 and 3 are the illegitimate children, then there is no question of filing any separate suit

for partition and separate possession. Hence, in the light of the findings above rendered, plaintiffs are entitled to a decree as prayed, and the appeal

is allowed with costs throughout. Consequently, L.P.A. No. 163 of 1986 filed by defendants is dismissed with costs.