MAHARANI KUSUMKUMARI Vs. KUSUMKUMARI JADEJA

JUDGEMENT

(1.) THIS appeal by the first wife and daughter of the deceased Maharaja Rameshwarsingh of Multhan preferred against the order of the District Judge, Dhar gives rise to an interesting question of law, whether an application under section 11 of the Hindu Marriage Act (hereinafter referred to as the Act) by a spouse for a declaration by a decree of nullity of the marriage after the death of the other spouse is maintainable.

(2.) IN order to understand the scope of the question, it is necessary to briefly state the material facts which lie in short compass that gave rise to this point : Appellant No. 1 is the legally wedded wife of the deceased Maharaja Rameshwarsingh and the second appellant is her minor daughter. The first respondent Smt. Kusumkumari Jadeja filed an application under section 11 of the Act on November 9, 1974 for annulment of her marriage with her husband Maharaja Rameshwarsingh as he has contravened the provisions of section 5 (1) of the Act. According to her, she was married to Rameshwarsingh on 15-11-1964 during the subsistence of the marriage of Rameshwarsingh with his first wife, the appellant herein. The appellants were not party as respondents to the petition under section 11 of the Act. The step-mother of Rameshwarsingh was the sole respondent. Having come to know of the pendency of the proceedings under section 11 of the Act initiated by the first respondent herein, the appellants got themselves impleaded in that application and contested the claim of the first respondent herein for declaration of her marriage with Rameshwarsingh on 15-11-1964 as a nullity on several grounds. The stand taken by the appellants herein is that the first respondent was not married to her husband Rameshwarsingh and in any event the application under section 11 of the Act is not maintainable after the death of the other spouse, namely, Rameshwarsingh. The preliminary objection relating to the maintainability of the application was over-ruled by the trial Court holding that the application under section 11 is maintainable inspite of the death of Rameshwarsingh, the other spouse. Hence this miscellaneous appeal.

(3.) SHRI S. N. Kohli, learned counsel for the appellants contends that the the very application of the first respondent under section 11 before the lower court is not maintainable in view of the death of the other spouse Rameshwarsingh and relied upon the provisions of sections 11, 5, 20 and 21 of the Act and the decision of the Madras High Court reported in Gowri Ammal v. Thulasi ammal, AIR 1962 Mad. 510. in support of his claim. This claim of the appellants is resisted by mr. Balwantsingh, learned counsel for the first respondent contending inter alia that there is no merit in this appeal as the provisions under section 11 do not require the presence or existence of other spouse for maintaining her application thereunder.