1. This second appeal had been heard by me at an earlier stage and I had referred the following question for consideration by a larger Bench, for the reasons contained in my order dated 27th September, 1979, namely—
QUESTION
“Whether the marriage between the plaintiff and Suresh Chandra could be adjudged null and void in the present suit, although it had not been declared to be so by a decree of nullity, on a petition presented by either party thereto against the other, under Section 11 of the Hindu Marriage Act, 1955, on the ground that Suresh Chandra had a wife living in the person of Chandra Kala, when the marriage between the parties question was solemnised in the year 1958, after the coming into force of the Act, for contravening the rule of monogamy prescribed by Section 5(i) thereof.”
2. The Hon'ble the Chief Justice did not, however, consider the case to be a fit one to need the attention of a Division Bench and has referred the matter back to me for being disposed of in accordance with law, by his order dated 24th September, 1980. In my referring order dated the 27th September, 1979, I had expressed the view that on the facts and in the circumstances of the case, the marriage in question cannot be adjudged to be null and void in the present suit, that it was a fact which, subsisted without any objection; and that one must proceed on the assumption that the plaintiff-respondent was the wife of Suresh Chandra deceased, and his widow after his death, for all purposes.
3. Having heard Mr. R.B Paul, learned counsel for the defendant-appellant, once over again in support of his contention to the contrary, I still hold the same view. I need not repeat the facts of the case or the reasons given by me in the said referring order which shall be deemed to form pail of this judgment along with the order of the Hon'ble the Chief Justice. I must, however, take note of certain eases which were cited before me at the rehearing, before proceeding on to decide the appeal on the merits in the light of my view on the aforesaid question.
4. Of the first case cited by Mr. Paul, namely Bajirao Raghoba Tambare v. Tolanbai Bhagwan Tonga, 1979 Mah LJ 693 : (1980 Cri LJ 473) a full report was not made available to me. Only the following Note contained in the Yearly Digest, April, 1980, Column 715, was placed before me:—
“A marriage in contravention of S. 5(i). Hindu Marriage Act, is null and void and it cannot create a legal status of husband and wife between the parties, though the necessary ceremonies may have been gone through. Though S. 11 gives a right to the parries to file a petition for a decree declaring the marriage a nullity, the filing of such a petition is not a condition precedent for putting an end to the marriage. What ultimately is declared on such a petition is nothing but the status of the party, as on the date of marriage and therefore the marriage does not continue to remain valid until a decree is passed. What is null and void cannot be deemed to be in existence for any purpose whatsoever. If, therefore, a marriage is solemnised in contravention of Sec. 5(i), the woman cannot get the status of a wife, nor can the male get the status of husband qua her. For a valid marriage which alone can confer the status of wife, not only the ceremonies under the personal law must be gone through, but the marriage must conform to the statutory requirements of Ss. 5 and 11, Hindu Marriage Act, in the case of Hindus. A clear distinction is made between void and voidable marriages. While S. 11 contemplates void marriage, S. 13 postulates marriages that are voidable.”
5. I have in the referring order dated 27th September, 1979, already noticed the distinction between Sections 11 and 12 of the Hindu Marriage Act. The distinction between the two classes of marriages, those declared null and void by Section 11 and those declared voidable by Section 12, is very much there. While under Section 11, either party to a bigamous marriage, or a marriage within the prohibited degrees of relationship or between sapindas, may have it declared null and void, on a petition presented to the District Court against the other party to that marriage, although the petitioner himself/herself may be the party guilty of it; under Section 12, on the other hand, only the party aggrieved by the impotence, unsoundness of mind, force or fraud in obtaining consent, or the pregnancy of the other party at the time of the marriage, can have the marriage annulled by a decree of nullity against the guilty party to the marriage. In both cases the decree passed is a Decree of Nullity. While in cases under Section 11 the decree of nullity declares the marriage to be Null and Void, in cases under Section 12 the decree of Nullity annuls the marriage and renders it Null and Void. Section 16 of the Act, does not make any distinction between the effect of void and voidable marriages on the legitimacy of children born before the passing of the decree of Nullity, or their right to succeed to the property of the parties to such marriages as their legitimate children. Therefore, to say that a marriage declared to be void under Section 11 of the Act cannot be deemed to be in existence for any purpose whatsoever, and that too even before/until a decree of Nullity is passed under the Act, is in my opinion, and I say so with great respect to the learned Judges who decided Bajirao's case (1980 Cri LJ 473) (Bom) not correct, for being against the express scheme of the Act. The truth is that the nullity, of a marriage in such circumstances as are prescribed by it, is a creature of the Act, and not only does the Act confer the right to have a marriage solemnised in contravention of the clauses (i), (iv) and (v) of Section 5 declared a nullity, by declaring it to be null and void, it also confers, in positive language, the right to have it so declared, on either party thereto against the other party, by Section 11 of the Act, and further prescribes the procedure and the forum for the same. As already observed by me in the referring order, the rule of interpretation is that, “if an affirmative statute which is introductive of a new law direct a thing to be done in a certain way, that thing shall not, even if there be no negative words, be done in any other way.” (Craies on Statute Law: VII Edn., pp. 264-265).
6. Mr. B.B Paul then cited a few cases, namely (1) Madhavan v. State, AIR 1966 Ker 212 (FB); (2) Gorakh Nath Dube v. Hari Narain Singh, (1973) 2 SCC 535 : AIR 1973 SC 2451; (3) Ram Nath… v. Smt. Munna…., 1976 RD 220 (FB); and (4) Manna Lal Khetan v. Kedar Nath Khetan, (1977) 2 SCC 424 : (AIR 1977 SC 536) to show that the nullity of an Act or transaction which was null and void, could be established in a collateral proceedings or wherever or whenever it was set up, without having it set aside or cancelled or declared to be so on a suit instituted for that purpose by the party who is interested in avoiding it. Those cases are at their place and the law declared by them is indisputable, but are of no assistance in tackling the problem presented by the present case before me. As observed by Alagiriswami J. of the Madras High Court as he then was, in Paramasami v. Sornathammal, AIR 1969 Mad 124, paragraph 4 at page 125, already referred to and relied upon by me in my referring order:
“Under the ordinary law of contract if the contract is void, it could be so treated and any other remedy sought without having to set aside that contract. But in respect of marriages even when the marriage is null and void, it cannot be so held at the instance of third parties; a declaration of nullity can be asked for only by either party to the marriage and in any case after the death of one of the parties nobody can question the validity of the marriage. Nor can any relief be asked for on the basis that the marriage does not subsist. So resort to a Court is necessary to declare a marriage null and void and no relief can be claimed without asking for such a declaration.”
7. I must add that the Hindu Marriage Act having conferred exclusive jurisdiction on a District Court, and prescribed the procedure for having a marriage declared mill and void, which is void according to Section 11 thereof, such declaration could be granted only by the District Court and in the manner prescribed by it, and by no other Court and in no other manner. The observations in Lakshmi Ammal v. Ramaswami, AIR 1960 Mad 6; and in Kedar Nath v. Smt. Suprava, AIR 1963 Pat 311; to the effect that although Section 11 of the Hindu Marriage Act does not give the right to the first wife, on account of whose being living the second marriage of her husband with another woman is void, to have the second marriage of her husband with the other woman declared a nullity by a petition presented under the Act, she may yet have it declared to be so by a suit in the ordinary jurisdiction of a civil court, are, with respect, obiter, and are in my opinion not correct. Such first wife has been provided with a much stronger remedy against her erring husband, by the provision made in Section 17 of the Hindu Marriage Act, which declared that: “Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living, and the provisions of Sections 494 and 495 of the Indian Penal Code (Act XLV of 1860) shall apply accordingly; One may wonder why our Parliament repeated the exercise of declaring a bigamous marriage void, under Section 17 of the Act, when it had already done so under Section 11. The answer is, to my mind this. While Section 11 provided a remedy to the parties to a bigamous marriage. Section 17 provided it to the wife on account of whose being living the second marriage by her husband with another woman, was void. There is under the Act a third remedy yet, against a bigamous marriage, that provided by Section 13(2)(i), but that is for a wife married before the commencement of the Act and where the second bigamous marriage had also taken place before the commencement of the Act, and since such marriages were not invalid then, the remedy provided is of dissolution of marriage by a decree of Divorce, and not declaration that it was null and void by a Decree of Nullity.
8. I have, therefore, no hesitation in reiterating the view expressed by me in the referring order dated 27th September, 1979, for the reasons given therein and the further reasons given hereinabove, that a marriage though null and void for contravening any of the conditions prescribed, by clauses (i), (iv) and (v) of Section 5 of the Act, has yet to be regarded a subsisting fact, and in that sense it cannot be said to be wholly non est in law, or a nullity, so long as it is not declared to be null and void by a decree of Nullity of the District Court on a petition presented by either party thereto against the other party to the marriage. No third person can treat the marriage to be void or have it adjudged to be null and void in any other suit or proceeding unless it has, already been declared to be so by a decree of Nullity of a District Court in accordance with the procedure prescribed by and under the Act; the only exceptions being the case where the aggrived spouse of the first marriage on account of whose being living the second marriage is void, prosecutes the other spouse for being punished for bigamy under Section 406 or 495 of the Indian Penal Code, read with Section 17 of the Hindu Marriage Act; or the case where the aggrieved spouse prosecutes the guilty spouse for a contravention, of clauses (iv) and (v) of Section 5 under Section 18(b) of the Act.
9. This brings me to the second point raised by Mr. B.B Paul on the merits of the case, which is recited in the referring order after the recital of the facts; the point being that on the fact found the plaintiff-respondents husband's younger brother, Promod Kumar, the defendant-respondent No. 2, inherited nothing and therefore no decree could be passed against him, and further that, of the plaintiff's husband's two heirs, the plaintiff-respondent herself was one heir and the defendant-appellant was the other heir; that both of them were joint heirs of equal degree, and both of them were widows and were equally entitled to maintenance from the estate of the plaintiff's husband, the plaintiff as the widow and the defendant-appellant as the mother. Mr. B.B Paul had also urged that the income from the estate was very meagre and not sufficient even for the maintenance of the defendant-appellant.
10. The finding of the trial court is that the property detailed at the foot of the plaint is the joint ancestral property of the family. The defendant-appellant's husband and the plaintiff's father-in-law had died, according to the plaint in or about the year 1945. The defendant-appellant must have on the death of her husband acquired the same interest which he had in the joint family property along with her sons, namely the plaintiff-respondent's husband Suresh Chandra and the defendant-respondent Promod Kumar. On the death of the plaintiff's husband Suresh Chandra, his undivided interest must be deemed to have been divided at a notional partition immediately before his death and to have been inherited by his heirs. Although Suresh Chandra's mother Sheel Wati, the defendant-appellant would be one of such heirs, but having been entitled to a share at the notional partition immediately before the death of Suresh Chandra, it may be that because of Explanation II to the proviso to Section 6 of Hindu Succession Act, 1956, she may not be entitled to any further share in Suresh Chandra's inheritance; and it may further be that the plaintiff-respondent herself also was entitled to a share at the notional partition immediately before the death of Suresh Chandra, under the provisions of Explanation I to the Proviso to Section 6 of the Act. But the precise extent of the shares of the parties in the inheritance of Suresh Chandra, or in the property detailed at the foot of the plaint not being in question in the present case. I refrain tom expressing any opinion on the point. It is undisputed that the plaintiff-respondent has not received any part of the inheritance of her husband, and the whole of it is in the possession of the defendants, including the defendant respondent. Indeed the defendant-respondent being the eldest male member of the family must be deemed to be the Karta and manager of the entire property which appears to have continued to remain joint. He was no heir to Suresh Chandra but had an interest in the property even during the lifetime of his father Sant Prasad. He cannot therefore be exempted from the decree.
11. As to the quantum of maintenance, suffice it to say that the rate at which maintenance has been decreed is so meagre that it can call for no interference.
12. The appeal must therefore fail and is hereby dismissed with costs.
13. But I must make it clear that the entire suit of the plaintiff-respondent having been decreed by the trial court, which was confirmed by the lower appellate court, the precise reliefs decreed are—
(1) recovery of Rs. 60/- p.m as maintenance during the life of the plaintiff, against the two defendants, with a charge for the recovery of the same on the property detailed at the foot of the plaint;
(2) recovery of Rs. 720/- as maintenance for one year preceding the date of suit with interest (the rate of which being unspecified is now specified as 6% p.a) pendente lite and future;
(3) recovery of maintenance pendente-lite at the said rate of Rs. 60/- p.m, the court-fees on which shall be recoverable in the course of execution proceedings, of course, in case it becomes necessary to execute the decree, and will in that event be ultimately borne by the defendants;
(4) injunction against the defendants restraining them from preventing the plaintiff from residing in the residential house; and
(5) Costs throughout
14. Appeal dismissed.