Jahagirdar, J.:— The appellants in this appeal were defendants 1 and 2 in Special Civil Suit No. 30 of 1979 which was filed by respondents 1 to 4 in the Court of the Civil Judge, Senior Division, at Dhule. For the sake of convenience, the parties will be referred to as the “plaintiffs” and the “defendants”. In order to understand the nature of the suit, it is necessary to mention the relationship between the parties.
2. One Tukaram had been married to Dagubai, who is plaintiff 1. She has three daughters from Tukaram. They are plaintiffs 2, 3 and 4. During the subsistence of his marriage with Dagubai, Tukaram married Lilabai, who is defendant 2, sometime in the year 1976. From her he got a son, Shantaram, who is defendant 1. Tukaram died in June, 1978. The plaintiffs filed the suit against the defendants who were in possession of several properties which had been left by Tukaram. The suit was, in particular, for a declaration that the defendants were not the legal heirs of Tukaram, that they had no right, title or interest in the properties of Tukaram, and for possession of the said properties. Since the plaintiffs, who were four in number, were entitled to succeed to the estate of Tukaram, they also prayed for partition and possession of the properties to the extent of 1/4th share to each of them. In the alternative they prayed that in case it was held that the first defendant had a share in the properties then the Court should determine the shares and partition the properties and give the same in the respective possession of the parties. The main thrust of the plaintiffs, therefore, in the suit was that the defendants were not the legal heirs of Tukaram because defendant 2 married Tukaram during the subsistence of the latter's valid marriage with the first plaintiff.
3. The defendants resisted the suit by contending that plaintiff 1, namely Dagubai, had been divorced by Tukaram as per the custom governing the community to which the parties belonged and it was thereafter that Tukaram's marriage with defendant 2 took place. Hence the marriage between defendant 2 and Tukaram was valid and therefore the defendants were the heirs of Tukaram.
4. The learned trial Judge, after framing the necessary issues, held that though there was a custom which permitted divorce, apart from the Hindu Marriage Act, in the community to which the parties belonged, as a matter of fact there was no divorce between Tukaram and Dagubai. He therefore necessarily held that Tukaram's marriage with defendant 2 was void under the provisions of S. 11 read with S. 5(i), Hindu Marriage Act. The result was that defendant 2 was not the validly married wife of Tukaram. In the absence of a better compact word, we would be referring to her as the illegitimate wife. The first defendant, who was the offspring of defendant 2 from her marriage with Tukaram, was naturally an illegitimate son but for the provisions contained in S. 16, Hindu Marriage Act.
5. The legal consequence, according to the learned trial Judge, was that neither of the defendants had a share in the properties of Tukaram. He, however, held that both the defendants were entitled to maintenance. For this the learned trial Judge relied upon Rajeshbai Sadashiv Khairnar v. Shantabai, Sadashiv Khairnar, 83 Bom LR 327 : (AIR 1982 Bom 231), wherein it has been held by Masodkar, J. that “where in any collateral proceedings after the death of a Hindu husband, a finding is recorded by a competent Civil Court that his marriage with a woman was void de jure that woman would be entitled to rely on the principles of S. 25, Hindu Marriage Act, and invoke the powers of the Court for making provisions for just and fair maintenance”. While so holding; Masodkar, J. in fact purported to apply a ruling of another judgment of this Court, namely Govindrao v. Anandibai (by Kania J. as he then was), 79 Bom LR 73 : (AIR 1976 Bom 433). As far as the right of maintenance of children born of a void marriage is concerned, S. 21(viii) read with S. 22, Hindu Adoptions and Maintenance Act, 1956, was sufficient authority. The learned trial Judge, therefore, proceeded to declare that defendants were not the legal heirs of deceased Tukaram, and therefore they did not have any right, title or interest in the properties left by him except the claim for maintenance. He also directed the defendants deliver possession of all the properties to the plaintiffs. The plaintiffs who were four in number were entitled to 1/4th share in the said properties. Usual directions under O. XX, R. 12(1)(c), Civil P.C were also given. The learned trial Judge also decreed that defendant 1 do recover Rs. 2,400 per year as maintenance till he becomes major from January 1983 and similarly defendant 2 do recover Rs. 2,400 per year as maintenance for her life from January 1983 as long as she remained unmarried. Charge was kept on the properties for the maintenance of both the defendants. This was done by the learned trial Judge by his judgment and order dated 14th December, 1982.
6. The defendants have challenged the said judgment and decree of the Court below by contending that the Court below erred in holding that there was no divorce of Dagubai by Tukaram. The defendants have also urged in this appeal that children of a void marriage are legitimate for the purpose of succession to the property of the family in which they are born and, therefore, defendant 1 is entitled to a share in Tukaram's properties.
7. The plaintiffs have filed cross-objections wherein it has been urged that defendant 2, whose marriage with Tukaram has been held to be void, is not entitled to maintenance at all. According to the plaintiffs, there is no authority of law under which defendant 2 could legitimately claim maintenance, especially after the death of the person to whom she had been married.
8. In respect of the finding recorded by the trial Court on the question of the divorce of Tukaram from Dagubai, it had been urged in the Court below that sometime in the year 1960 Tukaram had transferred some of his properties in favour of Dagubai for her maintenance. It is suggested that this Tukaram would not have done if he had not divorced her. There is enough evidence to show that such transfer of properties was in fact made in favour of Dagubai by Tukaram sometime in the year 1960. Mr. Tipnis, the learned Advocate appearing for the defendants, relied upon this circumstance for persuading us to hold that there was a divorce between Tukaram and Dagubai. It has also been urged by Mr. Tipnis that the fact that Tukaram and Dagubai did not have any male issue, though they have got three daughters, indicates that there was some sort of compulsion on the part of Tukaram to take a second wife who would, according to the prevalent sentiment in the community, would give him a son. Apart from these two Circumstances, which Mr. Tipnis regards as strong circumstances, there is the oral evidence of one Babulal, who was examined as defence witness 5.
9. The fact that Tukaram transferred some of his properties in favour of Dagubai in the year 1960 for maintenance is, in our opinion, of little significance. At the most it may suggest that Tukaram and Dagubai were living separately. Even that seems to be doubtful because a daughter Sunanda was born to them in the year 1961. In any case, such a circumstance as the transfer of some properties by Tukaram in favour of Dagubai, his wife, does not, in our opinion, suggest that they were divorced. Somewhat stronger and more persuasive evidence is necessary to hold that a couple who are married validly are validly divorced. Similarly, the fact that the couple did not have any male issue itself would not suggest that Tukaram had divorced his wife Dagubai. It may be noted that the transfer of properties in favour of Dagubai took place sometime in the year 1960. The last of the three daughters was born to Dagubai in the year 1961. The second marriage admittedly took place in the year 1976. If Tukaram wanted to marry again to have a son after his apparent dissatisfaction with Dagubai who gave him three daughters, he would not have waited for nearly 15 years for the second marriage. It may be true that Tukaram, like so many ignorant persons both in India and abroad, believed that the sex of a child is determined by the wife. It is a superstition which compels a husband to seek another wife and brings misery to the lives of innocent women who for no fault of theirs do not bear a male child. It is more than adequately established that the determination of the sex of a child is wholly accidental — neither the husband nor the wife making any contribution to it. At the time of the fertilization of the female egg and the spermatozoa, the sex is determined depending upon the nature of the fertilization (see Encyclopaedia Britannicca, Volume 27, 15th Edition, page 250). Though Tukaram might have shared an eagerness to have a male child, on the facts of this case we are satisfied that he did not divorce Dagubai in the year 1960 as contended by the defendants in order to take a second wife for the purpose of having a male child.
10. The oral evidence of defendant's witness 5, namely Babulal, also does not inspire confidence in us, as it did not do in the mind of the learned trial Judge. His evidence is too vague, full of conjectures and surmises to be relied upon in a matter of this type. He has in the first place deposed that there is a custom in their community where — by a document is prepared in the presence of panchas under which a divorce is given. We need not dwell upon the question of this custom. Whether in fact Tukaram gave divorce to Dagubai is a question which is to be answered. In paras 3 and 4 of his deposition, which is under the cross-examination, this witness has given answers which unmistakably show that he has come only to oblige the defendants. He does not remember the Tithi or on what day of the week Tukaram gave divorce to Dagubai. He has stated earlier in his deposition that such divorces are reduced to writing on a stamp paper but in the case of Tukaram's divorce he does not remember in whose name the stamp paper was purchased. That document itself has not been made available to the Court. It is also difficult to accept his evidence on behalf of the defendants because it has been brought out in the cross-examination that the first plaintiff has filed two criminal cases against him. There is no other evidence to corroborate the testimony of Babulal. It is impossible to hold that Tukaram and Dagubai have divorced in the year 1960 on the basis of the evidence given by a witness in the year 1982 when the witness himself was about 20 years old when the divorce is alleged to have taken place. We have no difficulty in confirming the finding of the learned trial Judge that there was no divorce between Tukaram and Dagubai. The result is that defendant 2 was not validly married to Tukaram and, as stated earlier, is the illegitimate wife. She is therefore not entitled to any share in the properties of Tukaram. Another result is that defendant 1 is the child of a void marriage. If it is held, as the learned trial Judge has held, that defendant 1 is the illegitimate son, then he also would not be entitled to any share in the properties of Tukaram but would be entitled to maintenance as provided for in the Hindu Adoptions and Maintenance Act.
11. Mr. Tipnis has then proceeded to contend that defendant 1, though a child of a void marriage, is entitled to a share in the properties at least of his parents and in the instant case in the properties of Tukaram because S. 16, Hindu Marriage Act, specifically provides that children of a marriage which is void are not to be regarded as illegitimate but are to be regarded as legitimate. There are some judgments which have, according to Mr. Tipnis, taken this view and they ought to be followed. It is necessary for us to review these judgments. They all are by single Judges of this Court. Before we do that, however, it is necessary to set down the legal matrix in which this question has to be viewed. Section 16, Hindu Marriage Act, before its amendment in the year 1976, was as follows:—
“16. Where a decree of nullity is granted in respect of any marriage under S. 11 or 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 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:
Provided that nothing contained in this section shall be construed as conferring upon any child of marriage which is declared null and void or annulled by a decree of nullity 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.”
12. It will be noticed that prior to the amendment, S. 16 took cognizance of only those cases where a decree of nullity had been passed. The proviso to the said Section stated that any child of a marriage which is declared null and void or annulled by a decree of nullity did not acquire any rights in or to the property of a person other than the parents. There are undoubtedly cases where a decree of nullity may not be passed but yet a marriage may be void under the provisions of the Hindu Marriage Act. The children of such a marriage would also be illegitimate, but S. 16 as it stood prior to the amendment in the year 1976 did not cover such cases. The Parliament substituted the old S. 16, Hindu Marriage Act, by the following Section by Act LXVIII of 1976:—
“16. (1) Notwithstanding that a marriage is null and void under S. 11, any child of such marriage who would have 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.
(2) Where a decree of nullity is granted in respect of a voidable marriage under 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.
(3) 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 is annulled by a decree of nullity under 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 reasons of his not being the legitimate child of his parents.”
13. The present position therefore is that any children of a marriage which is null and void under S. 11, Hindu Marriage Act, whether there has been a decree of nullity granted in respect of that marriage or not or whether the said marriage has been held to be void or not in proceeding under the Hindu Marriage Act, would be regarded as legitimate. The legitimacy, therefore, extends not only to the children of a void marriage which has been declared so in proceedings under the Hindu Marriage Act but also to the children of such a marriage, whether it has been so declared or not in proceedings under the Act. The proviso to the original-S. 16 is sub-s. (3) in the new S. 16. The effect of conferring legitimacy on a child of a void marriage is the same today as it was before the amendment of 1976.
14. The first judgment that has been brought to our notice is the one in Dadoo Atmaram v. Raghunath, 1978 Mah LI 739 : (AIR 1979 Bom 176) (Pratap, J.). In this case the provisions of S. 16, Hindu Marriage Act, were not brought to the attention of the learned Judge at all who, therefore, proceeded to decide the question whether an illegitimate son can succeed to the property of his father. Naturally, S. 3(1)(j), Hindu Succession Act, was noticed. It defines “related” to mean related by legitimate kinship. Section 8, Hindu Succession Act, provides for the devolution of the property of a male Hindu dying intestate upon the heirs who are relatives as specified in the Schedules to the Act. It is, therefore, clear that a relative must be a legitimate relative before he can be said to be entitled to the property of a male Hindu under S. 8, Hindu Succession Act. Since a child of a marriage which is void under the provisions of the Hindu Marriage Act is an illegitimate child, Pratap, J. necessarily held that such a child would not be entitled to succeed to the estate of a Hindu male dying intestate under S. 8, Hindu Succession Act. As already mentioned above, the provisions of S. 16, Hindu Marriage Act, were not considered and, naturally, the effect of the same was also not considered by the learned single Judge.
15. The next judgment which has been relied upon by Mr. Tipnis is the one in Laxmibai v. Limbabai, 1983 Mah LJ 103 : (AIR 1983 Bom 222). In this judgment, Masodkar, J. considered the provisions of S. 8, Hindu Succession Act, and also the provisions of S. 16, Hindu Marriage Act. But, unfor-tunately, the definition of “related” to be found in S. 3(1)(j), Hindu Succession Act, was not considered in this judgment. The learned single Judge, after noticing that legitimacy has been conferred upon the children of void marriage by S. 16, Hindu Marriage Act, observed that its effect must be worked out. He therefore proceeded to hold that the effect of legitimacy is to confer the rights in or to the property of the parents. The question whether S. 16, Hindu Marriage Act controlled S. 3(1)(j), Hindu Succession Act, or vice versa was not considered at all and, therefore, not answered.
16. In another judgment, namely in Raghurtath v. Nana, (1985) 87 Bom LR 488, the correctness of the decision in Laxmibai's case (supra) has been accepted by Parekh, J. There is no independent discussion of the question which is before us. Before we proceed to consider the question in the light of the provisions contained in both the Hindu Marriage Act and the Hindu Succession Act, we feel it necessary to examine the judgment in Raghunath v. Nana in some details because certain propositions laid down in the said judgment, in our opinion, are incorrect. The learned single Judge in Raghunath's case dissented from a decision of another learned single Judge in Hanmanta v. Dhondavvabai, 78 bom LR 675 : (AIR 1977 Bom 191). The facts in Raghunath's case were that one Rama Aba Patil had two sons, Nana and Annappa. Nana had been validly married to one Gojabai from whom he had a son, Shripati. Ratnabai was the second wife of Nana whose marriage was null and void under the provisions of the Hindu Marriage Act. From Ratnabai, Nana had a son Raghunath, who was the appellant before the High Court. He had filed a suit for a share in the property of Nana.
17. The facts further disclosed that after Rama's death in the year 1966, the ancestral property had been partitioned between Nana and Annappa. It must be noted that Nana had already a son, Shripati. The two Courts below had held that Raghunath being an illegitimate son could not claim any interest to the property that had come to the hands of his father Nana during the latter's lifetime. Relying upon S. 16, Hindu Marriage Act, the learned single Judge held that Raghunath was entitled to a share in the property which had fallen to the share of his father Nana after the partition between him and Annappa. In our opinion, this is wrong because the property which Nana got in the partition of ancestral property between himself and Annappa may be his separate property as against Annappa, but as against his own son Shripati it was coparcenary property. It is a matter of text-book proposition that the share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issues. They have an interest in it by birth, whether they are in existence at the time of partition or born subsequently. As regards other relations it is separate property. (See Mulla's Hindu Law, 15th Edition, page 291).
18. This was the view which had been taken by Hajarnavis, J. in Hanmanta's case, (AIR 1977 Bom 191) (supra). The facts of Hanmanta's case showed that Hanmanta was the defendant in a suit filed by his validly married wife, Dhondavvabai. She was plaintiff 1 and her son was plaintiff 2 in the suit filed by them against Hanmanta for partition and possession. The suit had been decreed by the Courts below and Hanmanta made a grievance in the High Court, by relying upon S. 16, Hindu Marriage Act, as it then stood, that the child of his illegitimate wife Nagavva, who was defendant 2, was also entitled to a share in his property. In unequivocal terms this contention was negatived because it was found that the property which was in the hands of Hanmanta was ancestral property as regards his son, plaintiff 2. In our opinion therefore, it will be incorrect to say that the son of a void marriage, though legitimate by virtue of the provisions contained in S. 16 of the Hindu Marriage Act, can claim a share in the property which belongs to a coparcenary of which his father is a member.
19. The learned single Judge who decided Raghunath dissented from Hanmanta partly, at any rate, on the basis of what he regarded as the authority in Laxmibai v. Limbabai, (AIR 1983 Bom 222). Laxmibai did not hold that children born of a void marriage are entitled to a share in the property of their father. The facts disclosed that the claim was made for succession to the property of the parents of the children born of a void marriage. Masodkar, J. held, for reasons mentioned in that judgment in the light of the provisions contained in S. 16, Hindu Marriage Act, that such children were entitled to succeed to the property of their father under S. 8, Hindu Succession Act. Succession opens only on the death of the person. Therefore it should be clear that a child is not entitled to have a share in the property of its father under S. 8, Hindu Succession Act, during the lifetime of the father. To that extent Raghunath is wrongly decided and is overruled. Since Dadoo Atmaram does not refer to S. 16, Hindu Marriage Act, and since Laxmibai does not refer to S. 3(1)(j), Hindu Succession Act, we have to consider the position of a child of a void marriage in the light of both these provisions.
20. We have mentioned earlier that legitimacy had been bestowed upon the children born of a marriage which was declared to be void by a decree of nullity before the amendment in 1976. The amendment of 1976 extended this legitimacy to the children born of a marriage which is void, whether it is so declared or not by a decree of nullity. Section 16(3), Hindu Marriage Act, by law confers a right upon such illegitimate children in the property of their parents. Even if it is regarded that this is a legal fiction, the consequences of that legal fiction must be extended to their logical end. After examining the provisions of both the Hindu Marriage Act and the Hindu Succession Act it would be noticed that if the right attaching to the legitimacy created by S. 16(3), Hindu Marriage Act, is not extended to include the right to the property under the Hindu Succession Act, S. 16(3) will make no sense. In construing the scope of a legal fiction it is not only proper but even necessary to assume all those facts on which alone the fiction can operate. Referring to the following observations of Lord Asquith in East End Dwellings Co. Ltd. v. Finsburry Borough Council, 1952 AC 109 at p. 132 the Supreme Court in I.T Commr. v. Teja Singh, AIR 1959 SC 352, explained the scope of a legal fiction:—
“If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.”
In B.P Andre v. Supdt., Central Jail, Tihar, AIR 1975 SC 164, the Supreme Court further pointed out:
“It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion.”
21. Mr. Agarwal however, contends that the amendment to S. 16, Hindu Marriage Act, was in the year 1976 and even prior thereto the Hindu Succession Act had come into force. The Parliament did not, according to him, use the words “notwithstanding anything contained in any other law”. He, therefore, contended that the legitimacy which has been bestowed upon the children of a void marriage under S. 16, Hindu Marriage Act, would not extend to the situations arising under the Hindu Succession Act. For the purpose of interpreting the provisions of the Hindu Succession Act, S. 3(1)(j) of that Act atone can be looked into. In other words, according to him, the legitimacy to be found in S. 16, Hindu Marriage Act, cannot be engrafted to the definition contained in S. 3(1)(j), Hindu Succession Act. In our opinion, this submission is misplaced. We have already held above that the legitimacy conferred by S. 16, Hindu Marriage Act, was there even prior to the 1976 amendment. Only it was extended to some more persons. The Hindu Succession Act is no doubt an Act which is later to the Hindu Marriage Act. One must proceed on the assumption that the Parliament was aware of the provisions contained in S. 16, Hindu Marriage Act an earlier law and despite this it did not exclude the children who were made legitimate under S. 16, Hindu Marraige Act, from the class of legitimate heirs under the Hindu Succession Act. In fact one would assume that if the Parliament wanted to exclude the “legitimate children” of S. 16, Hindu Marriage Act, from the provisions of the Hindu Succession Act, it would have definitely provided for to that effect. The legitimacy, therefore, created by S. 16, Hindu Marraige Act, must be read into as a part of the definition in S. 3(1)(j), Hindu Succession Act. It would be unreasonable to suppose that S. 3(1)(j) would nullify the effect of a provision contained in an earlier Act when either by express words or by necessary implication it does not do so.
22. That apart, both the Hindu Marriage Act and the Hindu Succession Act belong to a family of laws relating to the same subject. We take it as settled rule of interpretation that if two legislations, which are pari materia, form cognate legislations, they form one Code. They, therefore, should be taken as forming one system and interpreting and enforcing each other. This rule of interpretation has received the approval of the Supreme Court in several decisions. (See, for example, State of Assam v. D.P Barua, AIR 1969 SC 831). Though the Supreme Court in Shah & Co. v. State of Maharashtra, AIR 1967 SC 1877, found, while examining the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act and the Bombay Land Requisitions Act, that they did not belong to the same family of laws, it has approvingly cited some authorities in para 21 of the said Judgment, which help in finding out when two statutes are to be considered as pari materia. Sutherland, in “Statutory Construction”, 3rd Edition, Vol. 2, at page 535, states:
“Statutes are considered to be in pari materia — to pertain to the same subject-matter — when they relate to the same person or thing, or to the same class of persons or things, or have the same purpose or object.”
The same author has also stated:
“To be in pari materia, statutes need not have been enacted simultaneously or refer to one another.”
The following observations by the same author is also helpful in understanding the two statutes which are under consideration:—
“When the legislature enacts a provision, it has before it all the provisions relating to the same subject matter which it enacts at that time, whether in the same statute or in a separate Act. It is evident that it has in mind the provisions of a prior Act to which it refers, whether it phrases the later Act as an amendment or an independent Act. Experience indicates that a legislature does not deliberately enact inconsistent provisions when it is cognizant of them both, without expressly recognizing the inconsistency.”
23. The Hindu Code as such unfortunately did not come to exist at the same time, but nevertheless the intention of the Parliament to legislate in respect of the several matters which would have been otherwise the subject of a Hindu Code is manifest in the fact that within a short time one after another different statutes were enacted. They deal with the same class of persons, namely the Hindus; they deal with the personal law of the said class; they deal also with the subject which have interrelations with each other. Marriage, children, rights of the children and other members of the family are all dealt with in these cognate laws, of which the Hindu Marriage Act and the Hindu Succession Act are two. It is, therefore, perfectly legitimate to import the meaning of legitimacy contained in S. 16, Hindu Marriage Act, into the provisions of the Hindu Succession Act; especially when in the latter Act there is no exclusion of such legitimacy while interpreting the provisions of the Hindu Succession Act. We must, therefore, hold that children born of a void marriage and who are regarded as legitimate by virtue of the provisions contained in S. 16, Hindu Marriage Act, are entitled to the rights conferred upon them by S. 16(3) irrespective of the apparent restricted definition of S. 3(1)(j), Hindu Succession Act.
24. We must, however, also bear in mind that legal fiction if created for some definite purpose has to be limited for that purpose and should not be extended beyond the legislative field. (See Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661). Similar is the effect of the judgment of the Supreme Court in I.T Commr., Gujarat v. Vadilal, AIR 1973 SC 1016. After examining the provisions of both the Hindu Marriage Act and the Hindu Succession Act, we have held above that the children of a void marriage have been given a right to the property of their parents. Since no child acquires a right in the property of its parents by birth, these rights can be exercised only by way of succession to the property. For that purpose they are to be treated as heirs in Class I of the Schedule to the Hindu Succession Act and they are entitled to succeed in accordance with the provisions contained in S. 8, Hindu Succession Act.
25. We now turn to the question of the right of a wife whose marriage is found to be void under the provisions of the Hindu Marriage Act. As mentioned above, for the purpose of brevity and convenience, and not meaning anything by way of a moral judgment, we refer to her in this judgment as the “illegitimate wife” — a phrase which has been used by Masodkar, J. in Rajeshbai's case (AIR 1982 Bom 231). Masodkar, J. held in the first place that a female, whose marriage is void de jure and surviving the death of the husband, would not be covered by the term ‘widow’ either in Class I of the Schedule or anywhere such reference occurs. Though noticing that the provisions of the Hindu Adoptions and Maintenance Act could not be treated as exhaustive on matters for awarding maintenance the learned Judge held that the right to maintenance of such a wife, namely the illegitimate wife, is recognised by S. 25, Hindu Marriage Act. Such a right could be worked out in any Civil proceedings. While so holding the learned Judge necessarily made a reference to Govindrao v. Anandibai, 79 Bom LR 73 : (AIR 1976 Bom 433). In Govindrao, Kania, J. held that S. 25(1), Hindu Marriage Act, confers a discretion upon the Court exercising jurisdiction under that Act at the time of passing any decree or thereafter on application made to it to order the husband to pay maintenance to the wife. Kania, J. expressly rejected the contention advanced before him that S. 25, Hindu Marriage Act, merely provided a remedy and did not confer any right. It was held therein that the power which has been conferred upon the Court to award maintenance created a corresponding right in the wife to get maintenance, provided the conditions laid down for the grant of the same were satisfied. We are in agreement with this law laid down in Govindrao and followed by Rajeshbai. We are also in agreement with Masodkar, J. when he has held that the right recognised by S. 25, Hindu Marriage Act, can be worked out in any Civil proceeding.
26. We have examined the other observations to be found in Rajeshbai. We are not satisfied that the support which Masodkar, J. derived from Sushilabai v. Ramcharan, 1976 Mah LJ 82 is correct. The facts in Sushilabai's case disclose that the petitioner before the High Court had filed a suit for partition and separate possession of her share in the joint family property against the respondent Ramcharan. She had a right of maintenance in the property apart from S. 25, Hindu Marriage Act. Before the partition could actually be effected and during the pendency of the suit it was held that she had a right to interim maintenance. In so holding Dharmadhikari, J. sought support from the provisions contained in S. 151, Civil P.C The inherent power of the High Court under S. 151, Civil P.C permitted it during the pendency of a proceeding to give interim relief which was a part of a larger relief which could be given at the conclusion of the proceeding. In our opinion, the inherent power of a Court under S. 151 of the Code is not intended to enable a Court to confer a right upon a party. The distinction between the procedural law and the substantial law must be borne in mind. The provisions of S. 151 of the Code do not invest a Court with legislative powers, but only enable a Court to pass such interim orders to do justice between the parties. The inherent powers of a Court are in addition to and complementary to the powers expressly conferred upon it by other provisions of the Civil Procedure Code. They are not intended to enable a Court to create rights in the parties, but they are meant to enable the Court to pass such orders for the ends of justice as may be necessary considering the rights which are conferred upon the parties by substantive law. We are not persuaded that judicial activism permits a Court to do what in effect is legislation. Though this part of the reasoning in Rajeshbai, (AIR 1982 Bom 231) does not find favour with us, the legal position which was originally found in Govindrao, (AIR 1976 Bom 433) and affirmed in Rajeshbai finds acceptance with us. We are, therefore, of the opinion that defendant 2, who is the wife of a void marriage, is entitled to maintenance under S. 25, Hindu Marriage Act, a right which could be enforced in any Civil proceeding such as the one in the present case. Obviously this right can be enforced only against the property of her husband.
27. We now summarise the propositions of law emerging from the discussion made above:—
I. In regard to a child of a void marriage:
(1) a child of a marriage which is void under the provisions of Hindu Marriage Act, whether a decree of nullity is passed or not, is a legitimate child (S. 16(1), Hindu Marriage Act);
(2) Such a child does not acquire right to property which a legitimate child would, but the legitimacy confers upon him right to property of his parents. (S. 16(3), Hindu Marriage Act);
(3) The property to which such a child can lay claim must be the separate property of the parents and not the coparcenary property in which the parent has a share. (Contrary view in Raghunath v. Nana, (1985) 87 Bom LR 488 is not the correct law);
(4) Since no child, whether legitimate or otherwise, acquires right by birth in the separate property of its parent, a child of a void marriage can only succeed to the property of its parent in accordance with the provisions of S. 8 or S. 15, Hindu Succession Act;
(5) A child of a void marriage is related to its parent within the meaning of S. 3(1)(j), Hindu Succession Act because of the provisions of S. 16, Hindu Marriage Act; proviso to S. 3(1)(j) must be confined to those children who are not clothed with legitimacy under S. 16, Hindu Marriage Act.
II. In regard to a woman whose marriage is void or declared void under the provisions of the Hindu Marriage Act:
(1) Section 25, Hindu Marriage Act, confers upon a woman, whose marriage is void or is declared to be void, a right of maintenance against her husband;
(2) This right of maintenance can be enforced by her not only in proceedings under S. 25, Hindu Marriage Act, but also in any other proceedings where the validity of her marriage is determined;
(3) This right can be enforced by her not only during the lifetime of her husband but also after his death against the property of her husband after his death;
(4) Of course, this right of maintenance is i available only during her lifetime and ceases I if she remarries.
28. On the facts of this case, the award of maintenance to defendant 2 is, therefore, upheld. The denial of a share to defendant 1 in the property of deceased Tukaram is set aside. We hold that defendant 1 is entitled to a share in the property of deceased Tukaram as a heir, in Class I of the Schedule to the Hindu Succession Act. Admittedly the properties of Tukaram in which defendant 1 is entitled to a share and in respect of which defendant 2 is entitled to enforce her claim for maintenance are in possession of the defendants. The amount of maintenance to defendant 2 cannot become payable till the possession is obtained by the plaintiffs and defendant 1. The charge which will have to be created on the said properties after partition among the plaintiffs and defendant 1 will be to the extent of 20% on the share of each person who takes it after partition.
29. In the result, we proceed to substitute the following decree in place of the decree passed by the trial Court:—
(1) The suit of the plaintiffs is hereby decreed as mentioned hereinafter, but without any order as to costs.
(2) It is hereby declared that defendant 1 is a legal heir of deceased Tukaram Jairam Patil and is a heir in Class I of the Schedule to the Hindu Succession Act.
(3) It is hereby declared that defendant 2 is entitled to maintenance during her lifetime till she remarries out of the properties of deceased Tukaram Jairam Patil.
(4) Each of the plaintiffs and defendant 1 is entitled to 1/5th share in the said properties. The properties shall be partitioned accordingly and possession of the share shall be given to the plaintiffs and defendant 1.
(5) The second defendant is entitled to maintenance in the sum of Rs. 2,400/- per year from the date on which the plaintiffs and defendant 1 obtain possession of the properties according to their share. The second defendant shall be entitled to such maintenance for her life as long as she remains unmarried.
(6) There shall be a charge for a sum of Rs. 480 per year on the properties allotted to each of the plaintiffs and defendant 1 who will be liable for maintenance to the extent of one-fifth of the amount of maintenance.
(7) Enquiry into the future mesne profits will be made under O. XX, R. 18 of the Code for the period from the date of the suit till the delivery of possession of the property.
(8) In respect of the agricultural properties the decree shall be sent to the Collector for partition in accordance with S. 54 of the Code.
30. There will be no order as to costs in this appeal.
Ordered accordingly.