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Case Number

S.A No. 614 of 1979

Attorney(S)

For the Appellant: P. Yadagiri Rao, S.L. Chennakesav Rao, Upendralal Vaghry, Advocates.

Judges

Chennakesav Reddi, J.

Acts

SECTION 11 HINDU MARRIAGE ACT 1955
Section 14(1) of the Hindu Succession Act, 1956 observed:The Hindu Succession Act, 1956
HINDU MARRIAGE ACT 1955
Section 19 of the Marriage Laws (Amendment) Act, 1976.
Marriage Laws (Amendment) Act, 1976,
Act10. Sub-section 2 and 3
Section 11 or Section 12

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The dispute concerns partition of an ancestral joint-family property and the entitlement of certain sons to a share. The plaintiff, Hiramal Singh, was born circa 1951 to Jamuna Bai, the second wife of the first defendant, Parasuram Singh. Parasuram developed an illicit relationship with Bona Bai (wife of Kishan Singh), brought her into his household and kept her as a mistress; Jamuna Bai and the plaintiff were subsequently turned out and Jamuna Bai took shelter with her parents. Parasuram later agreed to give Jamuna Bai a particular parcel of land (S. No. 547, Ghanpur) for maintenance and she was put into possession of it.

The plaintiff filed a suit for partition of the joint family properties into five equal shares and for delivery of possession of one share to him. The plaintiff's case was that Bona Bai had not been lawfully married to the first defendant and thus her sons (defendants 3 to 5) had no right to the joint family property. The first defendant remained ex parte. Defendants 3 to 5 maintained that their mother Bona Bai had been married to the first defendant according to Hindu Dharmasastras and that Jamuna Bai was not the legally wedded wife; they also contended that Jamuna Bai had already received her share and left the village, leaving them as the legal heirs.

The District Munsif (trial court) found the land to be ancestral and held that both Bona Bai and Jamuna Bai were wives of the first defendant; it decreed partition into five equal shares and allotted one share to the plaintiff. On appeal, the Appellate Court reversed: it held Bona Bai's marriage to the first defendant (allegedly in 1959) to be void under Section 5 read with Section 11 of the Hindu Marriage Act, 1955, because Bona Bai's first husband was living when that marriage took place; the appellate court thus treated defendants 3 to 5 as illegitimate and denied them a share. Defendants 3 to 5 then preferred the present second appeal.

Legal Issues Presented

Whether the section (described at the outset as Section 76 of the Hindu Marriage Act, 1955, and later discussed primarily as Section 16 as amended) confers a right in the Hindu coparcenary (joint-family) property on children born of marriages that are void under Section 11—i.e., illegitimate sons born out of unlawful wedlock or adulterous intercourse.
Whether, in a civil suit for partition and succession, a civil court (other than a matrimonial court) may determine that a marriage is void ipso jure under Section 11 for the purposes of succession and legitimacy even where no decree of nullity under the Act has been obtained.
Whether the amendment to Section 16 by Section 19 of the Marriage Laws (Amendment) Act, 1976 alters the entitlement of children of marriages declared void (or held void otherwise than on a petition under the Act) to be regarded as legitimate and to claim rights in ancestral coparcenary property.

Arguments of the Parties

Plaintiff's (as presented in the record)

The plaintiff's pleaded case was that Bona Bai was not married to the first defendant but was only his kept mistress, and hence her sons (defendants 3 to 5) were not entitled to any share in the joint family property.
At a later stage a counsel (referred to in the opinion) argued that in a partition suit a decree of nullity cannot be granted by the civil court, that a plea for nullity had not been taken, and that the pleaded position was that no marriage at all took place between the first defendant and Bona Bai.

Defendants 3 to 5 (as presented in the record)

Defendants 3 to 5 contended that the first defendant had married their mother Bona Bai according to Hindu Dharmasastras and that Jamuna Bai was not the legally wedded wife.
They also asserted that Jamuna Bai had already received her share in lands and left the village, and therefore they (defendants 3 to 5) alone were the legal heirs entitled to the property, arguing that the plaintiff's suit should be dismissed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gowri Ammal v. Thulasi Ammal, AIR 1962 Madras 510	In cases where a marriage is ipso jure void under Section 11, in a collateral dispute (such as succession) an ordinary civil court (other than a matrimonial court) can decide that the marriage was void though it cannot grant a decree of nullity in certain circumstances (e.g., after death of a spouse).	The court relied on this authority to conclude that the civil court hearing succession/partition can determine the voidness of a marriage for purposes of the dispute, without necessarily passing a decree of nullity under the matrimonial provisions.
Gurupad Kandappa Magdum v. Hirabai Khandappa Magdum, (1978) 3 SCC 383 : AIR 1978 SC 1239	When two interpretations are possible, prefer the one that advances the intention of the legislature and remedies social injustice; the scope of legislative reform (in that case Section 14(1) of the Hindu Succession Act) should be read to further equality and remedial intent.	The court invoked this principle to support a liberal, remedial interpretation of Section 16 (after amendment) so as to advance the legislative purpose of removing disabilities suffered by children of void marriages.
Amireddy Raja Gopal Rao v. Amireddi Sitharamamma, AIR 1965 SC 1970	Bachawat, J. observed that an illegitimate son (e.g., of a Sudra by his concubine) was not entitled to a share of inheritance if he was the offspring of an incestuous or adulterous connection; precedent authorities were cited to that effect.	The court distinguished this decision as factually different: that case involved a child of a concubine where no marriage had been solemnized between the parents; by contrast, in the present matter a marriage was solemnized (albeit void under Section 11). On that basis the court found Amireddy inapplicable to deny rights under the amended Section 16.
Datti Parisi Nayudu v. Datti Bangaru Nayudu, 4 M.HCR 204	Authority cited in Amireddy for the principle that certain illegitimate offspring (e.g., of incestuous or adulterous unions) could be excluded from inheritance.	Included among authorities in the Amireddy discussion; the present court considered the lineage of that line of authority but treated it as inapplicable on the present facts (where a marriage had been solemnized and Section 16 as amended applies).
Raghi v. Voinda, ILR 1 Bom 97	Authority cited in Amireddy for exclusion of offspring conceived in adulterous connections from inheritance.	Noted in the opinion as part of the Amireddy lineage; the court did not apply it because the facts here involve a solemnized marriage later held void under Section 11 and the amended Section 16 alters the legal position of such children.
Narayan Bharthi v. Laving Bharthi, ILR 2 Bom 140	Authority cited in Amireddy relating to inheritance rights of illegitimate children in certain circumstances.	Referenced via Amireddy; the present court treated these older authorities as distinguishable on facts and inconsistent with the remedial scope of the amended Section 16.
Tukaram v. Dinkar, 38 Bom LR 289 (A.I.R 1931 Bom 221)	Authority cited in Amireddy concerning limitations on inheritance rights for children of certain improper unions.	Again part of the line of older precedents discussed in Amireddy; the court considered them not determinative in the present case in view of the statutory amendment and the existence of a solemnized marriage held void under Section 11.

Court's Reasoning and Analysis

The court proceeded in a series of logical steps grounded in the record and statutory text:

Factual determination: The appellate court had found, on evidence (including the testimony of Bona Bai as D.W.-5), that the first defendant married Bona Bai at a time when Bona Bai's first husband was living. The present court treated that finding as one of fact and described it as "unassailable" — the marriage was therefore ipso jure void under Section 11 of the Hindu Marriage Act.
Jurisdictional/practical point: Addressing an argument that a civil court in a partition suit cannot grant a decree of nullity or that a plea of nullity was not pleaded, the court emphasized that where the marriage is ipso jure void under Section 11, an ordinary civil court entertaining a collateral dispute (such as succession or partition) may properly decide that the marriage was void for the purposes of the dispute (relying on Gowri Ammal v. Thulasi Ammal) — although the civil court need not itself pass a matrimonial decree of nullity under the Act.
Effect of a void marriage on children under the law as it stood and as amended:
- Prior to the 1976 amendment, Section 16 created a legal fiction of legitimacy only when a decree of nullity was granted under Sections 11 or 12; moreover, a proviso limited inheritance or property rights in certain respects (notably it did not confer rights in property of persons other than the parents in some circumstances). Thus, under the pre-amendment text, absence of a decree of nullity meant children could remain illegitimate for succession purposes.
- Section 16 was then amended by Section 19 of the Marriage Laws (Amendment) Act, 1976. The amended provision (quoted in the opinion) declares that notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate whether or not a decree of nullity is obtained and whether or not the marriage is held void otherwise than on a petition under the Act. Sub-sections 2 and 3 were noted as not relevant here.
Statutory construction and policy: The court described the amendment as widening the sweep of Section 16 to remove anomalies and hardships created by the earlier formulation, and characterized the provision as ameliorative, humanitarian and remedial in intent. The court emphasized that the provision was meant to cure the historical social disabilities suffered by children born of void or voidable marriages and thereby to confer social and economic rights — including rights in joint-family property — on such children. The court warned against allowing moral or ethical judgments about parental misconduct to "freeze" or curtail the statutory rights conferred by Section 16 as amended.
Precedent-based interpretive support: The court invoked the Supreme Court's approach in Gurupad Kandappa Magdum to prefer interpretations that advance legislative intent and remedy injustice. It thus favored a construction of Section 16 consistent with the ameliorative purpose of the 1976 amendment.
Distinguishing contrary authority: The court considered the Amireddy decision cited by the plaintiff-respondent, noting that Amireddy dealt with an illegitimate son of a concubine where no marriage had been solemnized between the parents; consequently, the principle in Amireddy (that certain illegitimate children could be excluded from inheritance when conceived in incestuous or adulterous connections) did not have direct relevance to a case where a marriage had in fact been solemnized but later found void under Section 11 and where Section 16 as amended applies to deem the child legitimate.
Conclusion on facts and law: Given the factual finding of a solemnized marriage that is void under Section 11, and given the remedial effect of the 1976 amendment to Section 16, the court concluded that the appellate court erred in holding the children of Bona Bai to be without rights in the ancestral coparcenary property. The trial court's decree (which had recognized both Bona Bai and Jamuna Bai as wives of the first defendant and had decreed partition into five equal shares with one share allotted to the plaintiff) was therefore to be restored.

Holding and Implications

Holding (core ruling):

THE SECOND APPEAL IS ALLOWED; THE DECREE OF THE APPELLATE COURT IS SET ASIDE; THE DECREE OF THE TRIAL COURT IS RESTORED. There shall be no order as to costs.

Immediate consequences for the parties:

The trial court's decree — which had held that the schedule land was ancestral property, that Bona Bai and Jamuna Bai were both wives of the first defendant, and which directed partition into five equal shares with one share allotted to the plaintiff — is restored.
By restoring the trial court's decree the court effectively accepts the trial court's finding as to status and partition; defendants 3 to 5 (sons of Bona Bai) are not to be disinherited on the ground that their mother’s marriage was void under Section 11 when considered in the light of the amended Section 16.

Broader legal implications identified by the court:

The amendment to Section 16 by the Marriage Laws (Amendment) Act, 1976 must be read purposively and remedially: it renders legitimate the children of marriages void under Section 11 for the relevant purposes even in the absence of a decree of nullity, and thus removes historic social and economic disabilities faced by such children.
The court emphasized that moral condemnation of parental conduct (e.g., adultery) should not be allowed to negate the statutory rights conferred upon children by the amending legislation; accordingly Section 16 (as amended) confers rights in the joint Hindu family property on children of marriages held void under Section 11, and courts should construe the provision consistent with its ameliorative aims.
The decision restores the practical effect of the trial court's partition decree rather than creating a novel rule; the court framed its approach within established principles of statutory interpretation and precedent that favor remedial constructions of social legislation.

Note: This summary is prepared exclusively from the provided opinion text. Quotations, references to sections, and the identity of parties are taken from that text without addition or inference beyond what the opinion itself states.

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Goverdhan Singh And Others v. Hiraman Singh And Others

1. This case involves the interpretation of the true scope and amplitude of Section 76, of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’). The question is: Does the section confer a right in the Hindu Coparcenary property on illegitimate sons born out of unlawful wedlock, and adulterous intercourse.

2. The facts and circumstances that give rise to the question are not complicated and may be made plain at the outset: The second defendant, Jamuna Bai is the wife of the first defendant, Parasuram Singh; Hiramal Singh, the plaintiff, is their son. He was born in or about the year 1951. The first defendant developed illicit intimacy with one Bona Bai wife of Kishan Singh. He brought her to his house and kept her as his mistress. The first defendant illtreated the second defendant and necked her out of the house along with the plaintiff. The second defendant took shelter with her parents. Defendants 3 to 5 are the sons of Bona Bai. It course of time the first defendant agreed to give the second defendant the land bearing S. No. 547 situated at Ghanpur village towards her maintenance and she was inducted into possession of the said land. The plaintiff then filed the suit for partition of the joint family properties into two equal shares and delivery of possession of one such share to him. The plaintiff's case is that Bona Bai the mother of defendants 3 to 5 was not married to the first defendant that she was only a kept mistress of the first defendant and, therefore, they were not entitled to any share in the joint family property. The first defendant remained Ex parte. The suit was mainly contested by defendants 3 to 5. It was their case that the first defendant married their mother Bona Bai according to Hindu Dharmasastras and that the mother of the plaintiff Jamuna Bai was not the legally wedded wife of the first defendant. It was the if case that since the mother of the plaintiff had already recieved her share in the lands and went out of the village, they alone are the legal heirs of the first defendant and that the suit was, therefore, liable to be dismissed. The learned District Munsif, on a consideration of the entire evidence adduced in the case held that the suit schedule land is the ancestral property and that Bona Bai, the mother of defendants 3 to 5 and Jamuna Bai, mother of the plaintiff are the wives of the fist defendant. Accordingly, he granted a decree for partition into 5 equal shares and the allotment of one such share to the plaintiff. Aggrieved against the said decree, the plaintiff preferred an appeal. The Appellate Court held that the marriage of Bona Bai with the first defendant which, according to her, took place in 1959, after the Hindu Marriage Act, 1955 came into force when her first husband was admittedly living, was viod under section 5 read with Section 11 of the Act. He, therefore, held that the defendants 3 to 5 are illegitimate children of the first defendant and that therefore they are not entitled to any share in the ancestral property. Accordingly the appellate Court granted a decree as prayed for by the plaintiff. Defendants 3 to 5 have now preferred this second appeal.

3. It is the finding of the appellate court and it is a finding of fac that the first defendant married Bona Bai when the first husband of Bona Bai was living. Clause (1) of Section 5 and Section 11 of the Hindu Marriage Act, 1955 read as follows:

“5. Conditions For a Hindu Marriage:

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—

(i) Neither party has a spouse living at the time of marriage.

11. Void Marriages: Any marriage solemnized 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 contravened any one of the conditions specified in clauses (i)(iv) and (v) of Section 5.”

4. Thus the marriage celebrated between Bona Bai and the 1st defendant is undoubtedly void and the finding of the appellate Court in that regard is unassailable.

5. The learned counsel, however urges that in this suit, which is one for partition a decree of nullity of marriage cannot be granted. He also submits that such a plea was not taken and that the pea taken was that no marriage at all took place between the first defendant and Bona Bai. But it is clear from the evidence of Bona Bai herself as D.W—5 that her marriage with the first defendant took place when her first husband was living. The marriage is, therefore, IPSO JURE void under section 11 of the Act. The dispute in the suit relates to the succession teethe ancestral property of the first defendant and the right of the sons of Bona Bai to claim a share in the ancestral property of the first defendant. Therefore, the Civil Court has to give a finding whether the marriage was a void one and in such a case whether the benefits of Section 16 of the Act cannot be invoked.

6. The Madras High Court in Gowri Ammal v. Thulasi Ammal (1) AIR 1962 Madras, 510 observed:

“……after the death of one of the spouses, a decree of nullity cannot be obtained. It will also not be possible to get a decree of nullity in respect of 3 voidable marriage after the death of one or both the spouses because the right to avoid a marriage is given only to the parties to the marriage. On the other hand, in the case of a marriage which is Ipso Jure void under section 11 of the Act, in a collateral dispute relating to the succession to the property between the heirs of the parties to the marriages an ordinary civil court other than a matrimonial court, can give a decision that the marriage was a void one but without passing a decree of nullity of the marriage.”

7. When once the marriage of Bona Bai to the first defendant is found to be void, the sons of Bona Bai viz. defendants 3 to 5 must be found to be illegitimate sons. That leads to the question: whether by virtue of the provisions of Section 16 of the Act as amended by Sec. 19 of the Marriage Laws (Amendment) Act, 1976, sons of Bona Bai have any rights in the Hindu coparcenary property. Section 16 prior to the amendment in 1976 read as follows:

16. Legitimacy of Children of Void and Voidable Marriages Where a decree of nullity is granted in respect of any marriage under Section 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 anulled 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 a marriage which is declared null and void or annulled by a decree of nullity any right 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.”

8. The section deals with legitimacy of children of void and voidable marriages. It declares that if the marriage is anulled at the instance of either party under section 11 or 12 children born of such marriage shall be deemed to be the legitimate children of the parents for all intents and purposes except that by virtue of the proviso to the section they cannot claim any rights in or over the properties of any person other than the parents. The legal fiction thus created places a limitation on the applicability of the benefit to children of marriages annuled under sec. 11 or 12. In other words, it is the decree of nullity that entitles the children to the stamp of legitimacy and if that decree is wanting the children are illegitimate.

9. Section 16 was amended by Section 19 of the Marriage Laws (Amendment) Act, 1976. The section after the amendment reads as follows:

“16 Legitimacy of children of void and voidable Marriages:

(1) Notwithstanding that a marriage is null and void under Section 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 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”

10. Sub-section 2 and 3 are not relevant for the purpose of this case.

11. This amendment was made to remove certain anomalies and handicaps that had come to light after the pasting of the Hindu Marriage Act 1956. By the amendment the sweep of Section 16 has been widened and even where the marriage is null and void under section 11 any child of such marriage shall be legitimate whether or not a decree of nullify is granted in respect of that marriage under the Act and whether or not the marriage has been found void otherwise than on a petition under the Act, thus the section declares the legitimacy of a child even whin the manage between the parents is held to be void otherwise than on a petition under the Act. The limitation or doubts placed on the applicability of the benefit by the old section have been removed. It is well settled that a marriage which is null and void IPSO JURE and is declared to be void by the Court or annulled by the Court on the grounds of its voidability will have the inevitable effect of bastardising any child born to such parties. The effect of a decree of a nullity in the case of a void marriage or annulment of voidable marriage is to render the marriage null and void from its inception for all intents and purposes. The Legislature enacted the section to see that in no case the children of persons whose marriage is solemnised but is void or voidable under sections 11 or 12 of the Act will be regarded as illegitimate children.

12. The provision mandates reform in the on-going activities of society and is ameliorative in character. It is based on human-to-human system dependant on humantiarian and libertarian impulses. It corrects and cures the long-standing social evil suffered by illegitmate children. The section corners social and economic right on illegitimate children born out of unlawful wedlock. But for the provision, children of persons whose marriage is null and void are bastardised and suffer in social status and denied the rights of a coparcener in a Hindu Joint family. It is a social Imperative and casts a magic spell. Therefore, the moral and ethical conception of behaviour should not be permitted to freeze, amputate or abridge the social and economic rights conferred by the section in construing it. It would amount to judicial arrogance if the Court in its turn overlooks the intent and purpose of the provision, namely, to cure the historical and social handicaps suffered by children born out of unlawful wedlock. So construed, there is no escape from the conclusion that the section confers a right in the joint Hindu Family property on such children.

13. The Supreme Court in Gurupad Kandappa Magdum v. Hirabai Khandappa Magdum (2) (1978) 3 SCC 383 : A.I.R 1978 Supreme Court, 1239 explaining the scope of Section 14(1) of the Hindu Succession Act, 1956 observed:

“The Hindu Succession Act, 1956 provides by S. 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act shall be held by her as a full owner thereof and not as limited owner. By restricting the operation of the fiction created by explanation I in the manner suggested by the appellant, we shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu woman to acquire an equal status with males in matters of property. Even assuming that two interpretations of explanation I are reasonably possible, we must prefer that interpretation which will further the intention of the legislature and remedy the injustice from which the Hindu women have suffered over the ears.”

14. Section 16 was inserted by the Legislature to remedy the suffering of children of persons whose marriage was solemnized but was void or voidable, under sections 11 and 12. The section specifically declares that where the marriage is null and void under sec. 11 any child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate. To limit the scope of Section 16 to only children of persons whose marriage is not Ipso Jure void under section 11 is to defeat the very intention of the legislature and perpetuate the suffering suffered by illegitimate children over the years. The learned counsel for the plaintiff-respondent invited my attention to the decision of the Supreme Court in Amireddy Raja Gopal Rao v. Amireddi Sitharamamma (3) A.I.R 1965 Supreme Court, 1970 wherein Bachawat, J., observed:

“But the illegitimate son of a sudra by his concubine was not entitled to a share of the inheritance if he were the off spring of an incestuous connection see, Datti Parisi Nayudu v. Datti Bangaru Nayudu, 4 M. HCR 204, or if at the time of his conception, the connection was adulterous, see Raghi v. Voinda ILR 1 Bom 97, Narayan Bharthi v. Laving Bharthi, ILR 2 Bom 140, Tukaram v. Dinkar 38 Bom LR 289: (A.I.R 1931 Bom 221). Such an illegitimate son could not claim the status of a member of his father's family and could not get a shale of he inheritance as a Dasiputra under the express text of Mitakshara.”

15. I am unable to appreciate the relevancy of that decision to the facts of this case. In that case, an illegitimate son of a sudra by Brahmin concubine claimed maintenance. There was no marriage solemnized between the parents. But, in this case the marriage between the parents of defendants 3 to 5 was ??? solemnized but the said marriage was found to be void under section 11 of the Act. Therefore, the Appellate Court was in error ??? the decree of the trial Court. The decree of the Appellate Court is set aside and that of the Trial Court restored. The second appeal is accordingly allowed; but there shall be no order as to costs.

Goverdhan Singh And Others v. Hiraman Singh And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's (as presented in the record)

Defendants 3 to 5 (as presented in the record)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Goverdhan Singh And Others v. Hiraman Singh And Others

Comments