TULSAN DEVI Vs. KRISHNI DEVI

JUDGEMENT

(1.) SHRIMATI Krishni Devi was married to Mangat on December 30, 1956. Some children were born out of the wedlock. Mangat died in 1964. Before getting married with Shrimathi Krishni Devi, Mangat had another wife living by the name of Shrimati Tulsan Devi and had some children for her. After Mangat's death, a dispute with regard to the heirs to his property arose. It was pleaded on behalf of smt. Tulsan Devi and her children that the marriage of Smt. Krishni Devi with mangat was a nullity as after the coming into force of the Hindu Marriage Act (hereinafter called the Act), Mangat could not contract a second marriage in the presence of his first wife living and, therefore, her children had no right to succeed to the estate of Mangat after his death. This plea was accepted by the revenue official who sanctioned the mutation of the land left by Mangat in favour of his children from Smt. Tulsan Devi only. Smt. Krishni Devi filed a petition under section 11 of the Act for a decree of nullity of her marriage with Mangat on january 28, 1966. This petition was dismissed in limine by the Senior Subordinate judge, Karnal, on April 18, 1966, on the ground that a petition under Section 11 of the Act could be filed only during the lifetime of the two spouses. Smt. Krishni devi impleaded Smt. Tulsan Devi as the only respondent to her petition under section 11 of the Act. Against that order, Smt. Krishni Devi filed F. A. O. 63-M of 1966, in this Court which was accepted by the learned Single Judge by order dated february 16, 1972. The order of the Trial Court has been set aside and the case has been remanded to it for decision on merits. Against that order, the present appeal under clause 10 of the Letters Patent has been filed by Smt. Tulsan Devi.

(2.) THE learned counsel for the appellant has vehemently argued that a petition under Section 11 of the Act can be made only in the lifetime of the two spouses and cannot be made by one spouse after the death of the other. Section 11 of the act reads as under:--

(3.) SECTION 16 of the Act is very relevant for the decision of this point. It reads as under:-" 16. 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 annulled 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 rights 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. " from the language of this section it is clear that the off-spring of a void marriage are to be considered as legitimate children notwithstanding the decree of nullity, if it is granted under Section 11 or Section 12 of the Act. A child of such a marriage has been given the right of inheritance to the property of its parents and not of any other relation. Since the right of the children of Smt. Krishni Devi to inherit the property of the father was denied by Smt. Tulsa Devi, it was necessary for smt. Krishni Devi to obtain the decree of nullity in order to bestow the character of legitimacy on her children from Mangat who were begotten during the subsistence of that void marriage. The only persons interested in denying that status to Smt. Krishni Devi and her children are Smt. Tulsan Devi and her children and, therefore a petition under Section 11 of the Act was necessary to be filed to safeguard the interests of the children of Smt. Krishni Devi from Mangat. We, therefore, hold that it is not the requirement of Section 11 of the Act that a petition for a declaration of nullity of marriage should be made during the lifetime of both spouses to the marriage. Such an application can be made by one spouse even after the death of the other. The first submission made by the learned counsel is, therefore, repelled.