V.K. Venkataraman vs Muthusami and Others

Ramaprasada Rao, J,

The fifth Defendant in Original Suit No. 78 of 1964 on the file of the Court of the Subordinate Judge of Erode is the Appellant. The Plaintiff, as

a minor, represented by his friend and mother, Thangayammal, filed the present sanction for partition and possession of the Plaintiff''s alleged half

share in the suit properties. The first Defendant is the father of the minor. He married, in the first instance, the second Defendant, Kaliammal and he

has two daughters through he; who are also parties to the action as Defendants 3 and 4, who, being minors, are represenrted by their maternal

uncle-The first Defendant married again on 4th March. 1955, Than gayammal who is the mother of the minor Plaintiff. Whilst this is the position the

first Defendant entered into an agreement, Exhibit B-1, dated 16th March, 1964, agreeing to sell the suit property to the fifth Defendant. We are

informed that the fifth Defendant, finding that the first Defendant was evading to perform his part of the obligation under the agreement Exhibit B-1,

has filed an independent suit for special performance of the agreement in the Court below and that the said suit is pending. During the pendency of

the action, the Plaintiff has come to Court seeking for a partition and possession of his half share, in the property which is admittedly the Subject-

Matter of the agreement of sale, Exhibit B-1, entered into between the first Defendant and the fifth Defendant. The first Defendant, as usual,

remained absent and ex-parte. The second Defendant, filing a written statement on behalf of herself and her two minor daughters, says that the first

Defendant''s marriage with the Plaintiff''s mother is a void one and that, in that sense, the Plaintiff cannot be said to be the legitimate son of the first

Defendant to enable him to claim a share in the properties which are ancestral properties on the foot that is a coparcener in the family. The fifth

Defendant also avers that the marriage between the first Defendant and Thangayammal is void, and that, therefore, the Plaintiff cannot be taken and

considered to be the legitimate son of the first Defendant.

On the above relevant pleadings, the following issues were framed for trial:

(i) Whether the Plaintiff''s mother is the legacy wedded wife of the first Defendant and whether Plaintiff is legitimate son of the first Defendant?

(ii) Whether fifth Defendant has any interest in suit property by reason of his agreement to purchase and whether he is entitled to resist the suit by

Plaintiff? and

(iii) To what relief is the Plaintiff entitled?

The learned Judge found that the marriage as between the first Defendant and Thangayammal was true and that, the Plaintiff was born to the first

Defendant. He also found that the said marriage was void under the provisions of the Tamil Nadu Hindu (Bigamy Prevention and Divorce) Act,

1949. But on certain a priori considerations, the learned Judge was of the view that, though the marriage was void under the provisions of the

Tamil Nadu Hindu (Bigamy Prevention and Divorce) Act, 1949, yet, after the passing of the Hindu Marriage Act 1955, (Central Act XXV of

1955),and in the absence of any express provisions declaring the children begotton by such marriages as illegitimate, the Plaintiff must be hold to

be the legistimate son of the first Defendant entitled to partition as prayed for. He however held that the fifth Defendant, who had been made a

party to the action, was a necessary party and was entitled to contest the suit and non-suit the Plaintiff, if possible. In the result, the suit was

decreed as prayed for. It is as against this, the present appeal has been filed by the fifth Defendant.

Curiously enough, no one of the parties to the litigation is interested in assisting the Court, including the father. But, in order to set right the

controversy, which at first sight appeared to us to be inequitable and unreasonable, we gave notice to the first Defendant as that he could make his

appearance in Court and settle the matter, if possible. On such notice the first Defendant was represented by Counsel. Mr. Sethurathnam, and, in

spite of best efforts, there was no improvement or advancement in the matter of the parties adjusting their differences outside the Court. It has,

therefore, become necessary for us to consider the relevant provisions of the law in the light of the statutory provisions, both of the Tamil Nadu

Hindu (Bigamy Prevention and Divorce) Act, 1949, and the Hindu Marriage Act, 1955.

Mr. M.S. Venkataraman Iyer, learned Counsel for the Appellant, would say that, in view of the decisions of this Court rendered earlier on the

legal effect of a second marriage whilst the first spouse was alive during the time when the Tamil Nadu Hindu (Bigamy Prevention and Divorce)

Act, 1949. was in force, it is not necessary for him to go further and in this view, learned Counsel would say that as the marriage of Thangayammal

with the first Defendant was ab initio void, it necessarily follow that the minor Plaintiff could not be characterized or accepted as the legitimate son

of the first Defendant. He would, therefore, attack the finding of the Court below that, as such a legitimate son, the Plaintiff would be entitled to

partition of the suit properties and separate possession of his alleged half share therein.

Mr. T.R. Mani, learned Counsel for the Plaintiff Respondent, would say that, having regard to the language of certain provisions of the. Hindu

Marriage Act, 1955, there is an apparent inconsistency between the Tamil Nadu Hindu (Bigamy Prevention and Divorce) Act, 1949, and the

Hindu Marriage Act, 1955, and that, as the Legislature itself thought of solving such inconsistency by making a provision that the latter Act would

in such circumstances prevail over the former, the status of the Plaintiff ought to be recognized and accepted as a legitimate son and not as an

illegitimate child. A very curious aspect in this case is that the father, who is probably the pivot of this litigation, is standing out of its campus and

has accepted the finding of the Court below that the Plaintiff is his legitimate son. This stand of his, of course, is contrary to the express recitals in

the agreement Exhibit B-1, entered into by his with the fifth Defendant. This apart, the only question that arises for consideration in the instant case

is whether a son, who is the outcome of a void marriage and which voidity is the resultant of the invocation of statutory provisions, can be held to

be a legitimate son by a priori considerations and interpretations of a new enactment which, while repealing the earlier enactment, did not touch

upon the material issue, viz., as to whither the voidity of such quondum marriages did have impact on the legitimacy of their offspring. To make it

more clear, if the Hindu Marriage Act, 1955, does not in any way concern it self with the manner of legitimating the children begotten of void

marriages under the Madras Act, can it be said that silence of the Parliament in its Act creates an inconsistency with the Act of the Madras

Legislature and such children be accepted as the legitimate offsprings of a void marriage.

u/s 4(1) of the Tamil Nadu Hindu (Bigamy Prevention and Divorce) Act, 1949, (Act VI of 1949):

Notwithstanding any rule of law, custom or usuage the contrary, any marriage solemnized after the commencement of this Act between a man and

a woman either of whom has a spouse living at the time of such solemnization shall be void, whether the marriage is solemnized within or outside

the the State of Madras.

It is not necessary for us to cite the other portions of the section, including its proviso. There is, therefore, a clear declaration in Act VI of 1949,

that such bigamous marriages shall be void besides bring punishable. But what is sought to be pressed into service by Mr. Mani is the provisions of

the Hindu Marriage Act, 1955. He has referred to Sections 4, 5 (i), 11, 12 and 13 (2). Section 4 deals with the everriding effect of the Hindu

Marriage Act, 1955, In so far as it is relevant for our discussion, Section 4 says:

Save as otherwise expressly provided in this Act:

(b) any other law in force immediately Before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the

provisions contained in this Act.

The material factor, therefore, is, if the Court finds that any law immediately in force before the commencement of the Act is inconsistent with the

provisions of the Hindu Marriage Act, 1955, than such hw shall cease to be in force and have effect. Section 5(1) says that a marriage may be

solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage. Section 11 dealing with void marriages, says

that any such marriage solemnized after the commencement of the Hindu Marriage Act shall be null and void, and may, on a petition presented by

either party thereto, 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, Section 12 deals with voidable marriages and provides that such voidable marriages may be annulled by a decree of nullity and the grounds for

obtaining such decrees are enumerated in Clauses (a) to (d) of Section 12(1). Contravention of Section 5(i) is not one of the grounds stated here.

The other portions of Section 12 deal with the conditions under which a petition for annulment of a marriage may be presented. We are not,

however, concerned with that.

Section 13 deals with divorce, and, enter alie Sub-section 2 of Section 13 says:

A wife may also present a petition for the dissolution of the marriage by a decree of divorce on the ground:

(1) In the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement

or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the

Petitioner;

Provided that in either case the other wife is alive at the time of the presentation of the petition.

Here again, the rest of the Sub-section is not relevant for our discussion.

On the basis of Section 13(2),an argument is made out that, until the marriage solemnized before the commencement of the Act is dissolved by a

decree of divorce u/s 13 (2), the offspring of such a marriage should be considered to be the legitimate children of the speuses concerned, and is

that sense, it is stated that, as the marriage in this case was solemnized on 4th March, 1955 (before the commencement of the Hindu marriage Act,

1955), and at a time when the husband had another, wife living at the time of such solemnization, the marriage tie could be dissolved only by a

decree of divorce u/s 13(2) and that until such a tie is out by the interference of the Court through a decree of divorce, the children born of such

marriage should be regarded as legitimate. Expatiating this contention, it is stated that in the case there is inconsistency between the Hindu Marriage

Act, 1955 and the Tamil Nadu Hindu (Bigamy Prevention and Divorce) Act, 1949, and relying upon Section 4(b) of the Hindu Marriage, Art

1955, it is stated that, due to such apparent inconsistency, the earlier law shall cease to have effect. There is a fallacy in this argument. Section

13(2) of the Hindu Marriage Act presupposes the filing of a petition by a wife which, in turn, implies that there was a marriage as between the

spouses concerned,, But, if the Madras Act emphatically says that, notwithstanding any rule of law, custom or usage to the contrary, any marriage

solemnized after the commencement of the Tamil Nadu Act VI of 1949, between a man and a woman either of whom has a spouse living at the

time of such solemnization shall be void, than it follows that the question of obtaining a divorce of a marriage which is avoid will not arise. Divorce

may be asked for an one or the other of the grounds enumerated in Section 13(1) of the Hindu Marriage Art, 1955. Situation are created by the

Legislature wherein either of the spouses due to marital maladjustment, in comparability of living or such other causes like adultery etc., may go to

Court and obtain a decree of divorce of a marriage which is lawfully subsisting and accepted by the community as such. On the other hand when a

marriage as between two spouses, when one spouse is married already, is declared to be a void marriage by the statute, then no amount of form or

solemnization of the so called marriage will make it a marriage in the eye of law or in the face of the community. It is what is ordinarily termed as a

marriage which is ab inito void. The voidity of such a marriage dates back to the time when the spouses went through the process of marriage and

thought that they had solemnized the marriage as between themselves. The mental satisfaction of the spouses and the process deployed by them

resulting in their being satisfied that a marriage has taken place as between them will not suffice, as it is in the teeth of the legislation which

condemns such marriages and characterizes them as void marriages. A void marriage is no marriage at all it is only a marriage which has been

solemnized under an existing law or existing custom or accepted usage of the community which could be later the subject matter of a petition for

divorce by one or the other of the spouses. But, if there is no marriage, in the sence that it is a void marriage, the question of one spouse

approaching the Court for getting a divorce as between herself and the other spouse does, not arise at all, since such a marriage, by the

interference and force of law, is automatically stamped as a void marriage. We are, therefore, unable to perceive, as contended by Mr. Mani, any

inconsistency between the provisions of Section 13(2) of the Hindu Marriage Act, 1955, and the other relevant provisions of the Tamil Nadu

Hindu (Bigamy Prevention and Divorce) Act, 1949, for us to invoke Section 4(b) of the Hindu Marriage, Act 1955 and hold that, until a diverse is

obtained of the marriage which the law has declared to be void, the offspring of such a marriage would be legitimate children.

If, therefore, the position is clear, that the substance should prevail over the form, and, if the law has declared a marriage, solemnized prior to

the commencement of the Hindu Marriage Act, 1955, and, after the promulgation of Tamil Nadu Act VI of 1949, as a void marriage, provided

that the husband takes the second wife during the lifetime of his first, wife, then it goes to the root of the matter, and from its very inception, it is

only an engagement as between two spouses which the law would not accept as a valid marriage, notwithstanding the fact that the process which is

usually adopted to solemnize a regular marriage was gone through at or about the time when the void marriage took place. In this view of the

matter, we are unable to accept the contention of Mr. Mani that the Plaintiff ought to be treated as a legitimate, child of the first Defendant.

In the course of the bearing we noticed gross injustice being caused to persons like the Plaintiff. This is because a special provision which was

introduced in the Hindu Marriage Act, 1955, is conspicuously absent in the Tamil Nadu Act VI of 1949. u/s 16 of the Hindu Marriage Act, 1955,

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 deemed to be their legitimate child, notwithstanding the decree of nullity. Conspicuously, this provision is not to

be found in the Tamil Nadu Act VI of 1949. Whilist with impunity a male can take a second wife, after the 1955 Act are beget children through

such marriage and set up the second wife to obtain a decree of nullity so that the children begotton through such marriage might be made legitimate,

the children born of such wedlock prior to the 1955 Act, but under the grips of the Tamil Nadu Act VI of 1949, would still be illegitimate, as the

second spouse cannot approach the Court to have the so called marriage declared as a nullity and in consequence get a relief like the one provided

for such children u/s 17 of the Hindu Marriage Act 1955. In fact, the injustice was so glaring that at one time we requested the learned Advocate-

General to help us out of this very anomalous position. But, as the law stands, the learned Advocate-General felt helpless though the intention of

this Court was to give such deserving relief to children born of such wedlock, in the teeth of the Tamil Nadu Act VI of 1949. But, as Court are

expected to interpret the law not to declared the law, We accept the learned Advocate-General''s representation that, as the provisions of the

statute no relief could be given. It is for the Legislature, particularly the State Legislature, to think of a remedy, if possible through its portals.

We therefore, find that the finding of the Court below that the Plaintiff should be treated as the legitimate son of the first Defendant is not in

consonance with the express provisions of the Statute. In fact in D.K.R. Chinnaswamy Sah Vs. Rajamba Bai, srinivasan j. considered the import

of Section 4(1) of the Tamil Nadu Act VI of 1949 and its import on Section 11 of the Hindu Marriage Act. The learned Judge said that the

marriage having been contracted during the period when the Tamil Nadu Act, VI of 1949 was in force, there was no doubt whatsoever that, u/s

4(1) of that Act the marriage was void; that Act VI of 1949 was replealed by the Central Act XXV of 1955; that the latter Act, however, dealt

with marriage contracted only subsequent to the passing of that Act; that notwithstanding the repeal of Act VI of 1949, there was no doubt that the

rendering of a marriage void during continuance of Act VI of 1949 was fully effective and and that a marriage which was void under that Act could

not possibly become valid by reason of the repeal of the Act.

In Gowri Ammal and Another Vs. Thulasi Ammal and Another, Ramakrishnan .J had occasion to deal with Sections 16 and 11 of the Hindu

Marriage Act, 1955. We have already referred to the fact that Section 11 deals with void marriages. In that connection, the learned Judge stated

that, where the statute defined the limits for the purpose of the grant of benefit of legitimacy to children born of void and voidable marriages m a

particular way, the Courts were bound to give effect to such limitation without traveling outside these limits one presumed intention of the

Legislature, however great the hardship might be to the parties. The learned Judge has further held that the Hindu Marriage Act provides for a

decree for nullity being obtained by a proceeding under the Act, thus for a decree of nullity u/s 16 a petition has to be presented by either party to

the marriage to the Court having jurisdiction under the Act that it would follow that, after death of one of the spouses, a decree of nullity cannot be

obtained that on the other band, in the case of a marriage which is posture void u/s 11, in a collateral dispute relating to the succession to the

property between the heirs of the parties to the marriage, an ordinary civil court other than a matrimonial court cannot give a decision that the

marriage was a void one, but without passing a decree of nullity of the marriage; that In such a case Section 16 cannot be applied and the children

will not get the benefit of legitimacy and will also lose the right to share in the property of their parents; and that what renders the marriage invalid in

a statutory bar end there can be no estoppel against it.

In fact, this decision has been approved by a Division Bench of this Court in Thulasi Ammal by mother and guardian Kannu Ammal Vs. Gowri

Ammal and Others, .

As the marriage between the first Defendant and Thangayammal is void ab initio and as no question arises of such a marriage being subject

matter of a Petitioner divorce. We are of the view that the Plaintiff cannot claim the statues of a legitimate child. This appears to be in consonance

with the provisions of the statute and, as Ramakrishnn J. said what renders the marriage invalid is a statutory bar and there can be no estoppel

against it, and, we may add, there can be no argument one way or the other against that proposition.

In this view the appeal is allowed. There will be no order as to costs.