1. The question that falls for consideration in this revision petition is, whether a woman who has been married to a party who has already a spouse living can be treated as a spouse and thus be a member of the family unit for the purpose of the provisions of Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973.
2. The question arises in the following manner. The declarant Pothula Manik Reddy had married one Radhamma as his first wife. While she is living and as he has no children, he also married one Satyatnma. His second wife owns some lands in her name. But as there were no issues to him through Satyamma also, he adopted one Sangareddy. The Land Reforms Tribunal included the lands which were in the name of Satyamma, in the declarant's family unit and aggregated them and computed the holding and fixed the ceiling area of the declarant. The first Tribunal in so computing, treated Satyamma also as a member of the family unit and held that the family unit is entitled to only 1.0000 S.H and determined the excess as 0.9635 S.H The declarant along with his adopted son preferred an appeal. The Appellate Tribunal dismissed the appeal holding that Satyamma was married to the declarant according to the Hindu rites and they continued to be a married pair. As such, she must be treated as a spouse and must be included in the family unit of the declarant. Sri R. Narasimhareddy, learned Counsel for the petitioner contends that by virtue of the provisions of Section 5 read with section 11 of the Hindu Marriage Act, the marriage between the declarant and Satyamma is null and void and that Satyamma cannot be treated as a spouse. I see considerable force in this submission.
3. The family unit as defined under section 3(f) of the Act reads thus:—
“family Unit’ means—
(i) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and their unmarried minor daughters; if any;
(ii) in the case of an individual who has no spouse such individual and his or her minor sons and unmarried minor daughters;
(iii) In the case of an individual who is a divorced husband and who has not remarried, such individual and his minor sons and unmarried minor daughters, whether in his custody or not; and
(iv) where an individual and his or her spouse are both dead, their minor sons and unmarried minor daughters.
Explanation:— Where a minor son is married, his wife and their offspring, if any, shall also be deemed to be members of the family unit of which the minor son is a member.”
4. The definition as such contemplates an individual having more than one spouse. But section 5 of the Hindu Marriage Act lays down that for solemnisation of a marriage between two Hindus neither party must have a spouse living at the time of marriage. Any marriage performed contrary to that shall be null and void and may, on a petition under sec. 11 presented by either party thereto, be so declared by a decree of nullity passed by a Court. Section 17 in terms leys down that such a marriage amounts to an offence and is punishable for bigamy under the Indian Penal Code. It is well settled now that a marriage which is null and viod on the ground that one of the parties has a spouse living at the time of marriage, such a marriage is void ab initio and even the children born of such a marriage would be illegitimate.
5. In Mulla's Hindu Law, 14th Edition, page 733, a passage reads thus:—
“And where the marriage is null and void on the ground that one of the parties to the marriage had a spouse living at the time of the marriage it is competent to the other spouse to disregard such void marriage and enter into marriage with another person. A marriage which is void ab initio does not alter or affect the status of the parties nor does it create between them any rights and obligations which must normally arise from a valid marriage except such rights as are expressly recognised by the Act.”
6. It can thus be seen that the second marriage is null and void and it does not create any legal rights and obligations. Therefore, the woman who is married to a party who has already a living spouse cannot be treated as a spouse in the legal sense. The lower Appellate Tribunal however observed that since the marriage has not been declared as null and void, the relationship between them as wife and husband exists and therefore, she must be treated as a spouse and must be included in the family unit. This finding is erroneous.
7. Section 11 declares that any marriage solemnised after the commencement of this Act shall be null and void. It is only the party so chooses can approach the court and get a declaration to that effect. At page 687 of Mulla's Hindu Law, 14th Edition, a passage reads thus;
“A person, an innocent, party to a bigamous marriage, may go to a court for a declaration that the bigamous marriage is null and void. That would be for the purpose of precaution or record or evidence. But the bigamous marriage is non-existent and simply because there is no recourse to the court it cannot be said that it exists unless and until a decree is passed declaring it to be null and void.”
8. In William Hudson v. Mrs. Webester (1) (A.I.R 1937 Mad. 565) a case which arose under the Divorce Act, certain observations made therein, which are relevant, are thus:—
“If at the time of celebration of the marriage ceremony one or other of the parties had spouse living the earlier marriage not having been set aside the later marriage is void ab initio, in other words it is no marriage at all. The law in England that a party to a marriage of which the other party is incompetent to join in the celebration of a valid ceremony because of the existence of a previous husband or wife, is entitled without any recourse to any court to marry any one else because that particular marriage is not in law a marriage at all applies equally well to marriages between Christians in India inasmuch as no Christian can marry another person in the lifetime of an earlier spouse unless the previous marriage has been set aside”.
9. In Bansidhar v. Chhabi Chaterjee (2) (A.I.R 1967 Patna, 277), the scope of section 11 of the Hindu Marriage Act, has been considered and it is held:—
“A marriage which contravenes the conditions referred to in Sec. 11 is in law no marriage at all being void ipso jure and it is open to the parties even without recourse to the court to treat it as a nullity. Neither party is under any obligation to seek a declaration of nullity under this section though such a declaration may be asked for the purpose of precaution or record”.
10. Therefore, the mere fact that the parties have not approached a court for declaration as contemplated under Sec. 11 does not in any way alter the position and thereby it cannot be said that the marriage is a valid one and is a subsisting one.
11. In interpreting the provisions of the Land Ceilings Act, the general provisions of Hindu Law and the provisions of Hindu Marriage Act cannot be ignored. The Land Ceiling Act which is intended to fix the ceiling on agricultural holdings contains many provisions which are all very much connected with the principles of Hindu Law and the provisions of Hindu Marriage Act and they cannot be read or interpreted in isolation. In State of Madras v. Devaki Ammal (3) 1972 (2) MLJ 249) the learned Judge had considered the question whether the illegitimate children can be included in the family as defined under section 3(14) of Madras Land Reforms (Fixation of Ceiling on Land) Act and in that context observed:—
“‘family’ as defined refers to a “person”, wife or husband as the case may be, of such person, and his or her minor sons and unmarried daughters or minor grand-sons or unmarried grand-daughters in the male line whose father is dead. What the definition contemplates is a person, his or her spouse, and the children born to that person. As it has been conceded that illegitimate children will not be attracted by this definition the words “sons and daughters” have to be taken as referring to only legitimate children. Even though there is the natural relationship of mother and children between the first respondent and others, the question is whether the first respondent can be treated as ‘a person’ referred to in section 3(14) and the others as that persons' children”.
12. The learned Judge ultimately held that illegitimate children cannot be included in the family. It is not in dispute that a marriage in contravention of section 5 of the Hindu Marriage Act is not a valid one and any children born of such marriage cannot be legitimate children. If that be so, by no stretch of imagination, it can be said that Satyamma who was married to the declarant while his first wife was living, can be treated as a spouse and to be included in the family unit. Therefore the properties which are in the name of Satyamma should be excluded from the holding of the declarant. The Land Reforms Tribunal shall be accordingly exclude the same and recompute the holding and determine the excess.
13. The CRP is allowed.
14. No costs. Advocate's fee Rs. 100/-.