LAKSHMI AMMAL Vs. RAMASWAMI NAICKER

JUDGEMENT

(1.) This appeal has been filed by Lakshmi Ammal, the petitioner in O. P. No. 83 of 1955, on the file of the District Judge, Ramanathapuram, at Madurai, against the order of the learned District Judge dismissing as not maintainable, her petition under Ss. 11 and 17 of the Hindu Marriage Act XXV of 1955 for declaring the marriage of her husband Ramaswami Naicker, the first respondent, with Krishnammal, the second respondent, void and illegal.

(2.) The facts are briefly these: Lakshmi Ammal, the appellant, was admittedly the legally wedded wife of Ramaswami Naicker. She had no children. Ramaswami Naicker married the second respondent, Krishnammal, as his second wife after Act 25 of 1955 had come into operation. Lakshmi Ammal wanted to get this marriage of her husband with Krishnammal declared void and illegal under S. 17 of the Act by filing this application under Sec. 11. Both the respondents contended that she had no right to file an application under S. 11, as she was not "a party to the second marriage" sought to be declared illegal and void. Accepting this contention the learned District Judge dismissed the petition with costs. Hence this appeal.

(3.) I have perused the records and heard the learned counsel on both sides. Mr. Sundaram Aiyar, for the appellant, and Mr. G. N. Chari, for the respondents, have argued the case fully and fairly. Mr. Sundaram Aiyar raised several contentions. The first was that as the marriage of Ramaswami Naicker with Krishnammal was solemnised during the continuance of his marriage with the appellant Lakshmi Ammal, and would be therefore null and void under Ss. 11 and 17, it would be unjust to deny the first wife the right to file an application under Sec. 11 for declaring this marriage a nullity. He argued that the clause "party thereto" in Sec. 11 would include, by inevitable extension any other wife or husband of the parties to the illegal marriage and so a co-wife or co-husband. I cannot agree. The phrase is "either party thereto". That can only mean two persons, namely, the actual parties to the second marriage--Ramaswami Naicker and Krishnammal. Any marriage requires only two parties, and no third party. It will be contrary to sense and commonsense alike to bring in a co-wife, co-husband, concubine, keep, etc., on the ground that they also perform much the same functions, as the husband and wife, the parties to the void marriage. The fact is that the law does not take facts to mean the same things. Thus, a concubine may, for many purposes, no doubt, serve the purpose as a wife, but will not be a wife in law. So too a co-wife cannot become "a wife under the second marriage," for she is already a wife under the first marriage, and cannot be married again to her husband, at any rate without the intervention of a divorce and cessation of marriage for some time. The void second marriage was only between Krishnammal and Ramaswami Naicker, and the phrase "either party thereto" in Sec. 11 can only apply to those two persons, and not to the appellant Lakshmi Ammal, the first wife, or to any others.