PONNUTHAYEE AMMAL Vs. KAMAKSHI AMMAL

JUDGEMENT

(1.) THIS civil miscellaneous second appeal is brought before this court by one ponnuthayee Ammal, widow of Veerabadra Pillai, in the following circumstances: Veerabadra Pillai has a daughter by another wife. This daughter filed a suit for partition in O. S. No. 25 of 1969. In that suit Ponnuthayee ammal figured as a party. One of the issues in that suit was whether her marriage with Veerabadra Pillai was void, it having been contracted during the subsistence of an earlier marriage. The finding was that the marriage was void for that reason.

(2.) PONNUTHAYEE Ammal had children by Veerabadra Pillai. She was anxious to legitimize them, but it was possible to obtain legitimization only if her marriage with Veerabadra Pillai were declared a nullity under the Hindu Marriage Act, 1955. The finding in a collateral suit would not avail the children.

(3.) IT is in these circumstances that Ponnuthayee filed an independent proceeding O. P. No. 36 of 1974 under Sections 5 (1), 11 and 16 of the Hindu mariage Act, 1955, for a decree for nullity of marriage on the basis that her husband had contracted the marriage with the petitioner during the subsistence of an earlier marriage. At the time this petition was filed, the husband was dead and gone. She however impleaded the daughter by the first wife as the defendant. The learned Subordinate Judge went into the merits of the petition, and, allowing the petition, granted a decree for nullity. He rejected the contention raised by the respondent that a petition for nullity by the wife is not maintainable over the dead body of the husband and that an application under section 11 of the Hindu Marriage Act can only be maintained as against a husband living. The learned Judge rejected this contention relying upon certain observations of a Division Bench of this court consisting of Srinivasan and venkatadri JJ. in Thulasi Ammal v. Gowriammal,