KRISHNI DEVI Vs. TULSAN DEVI

JUDGEMENT

(1.) IN this appeal against the order of the Senior Sub-Judge, Karnal dismissing the petition of the appellant under Section 11 of the Hindu Marriage Act, the only question that arises for consideration is as to whether a petition under Section 11 of the Hindu Marriage Act, can be filed after the death of either of the two spouses or not. Krishni Devi one of the widows filed a petition under Section 11 of the hindu Marriage Act, 1955 (hereinafter called the Act) impleading the other widow of her husband Mangat as a respondent claiming a declaration that the petitioner's marriage with Mangat was a nullity. This petition was dismissed on the ground that it was not maintainable after the death of Mangat. Being aggrieved Krishni devi has come up in appeal to this Court.

(2.) SUPPORT for the contention that the petition under Section 11 of the Act would lie even after the death of one of the spouses was sought from the following observations made in Thulasi Ammal v. Gowri Ammal AIR 1964 Mad 118:-" an observation has been made by the learned Judge that a decree of nullity could be obtained only when both the spouses are alive. In this case, the husband Periaswami is dead and the learned Judge seems to have suggested that now that one of the spouses to the marriage is no longer alive, it will not be open to the widow to seek for a decree of nullity of her marriage with Periasami. With respect, we may observe that this question did not arise for consideration before the learned judge. Since the decree of nullity appears, in our opinion, to be a declaration of the status of a person, we are unable to see why the death of one of the spouses should put an end to the right of the other surviving spouse to seek for such a declaration. No authority, in support of either point of view has been placed before us except an observation in Mulla's Commentary and even that is with regard to voidable marriages. We would, therefore, prefer not to express any opinion upon this question. We would, however, leave to the first plaintiff the second widow of Periasami to take such steps as may be open to her to have a declaration of nullity of her marriage, which, if secured, would entitle the second plaintiff, the appellant herein to a declaration of statutory legitimacy. Except for this observation, the appeal is dismissed. " the above observations were made in a case in which a suit had been filed by the second wife and her daughter for a declaration of her title and fore recovery of possession of half of the estate of the deceased husband. It was found that the marriage of the second wife was wholly void by reason of S. (I) read with S. 11 of the Act. Her suit was, therefore, dismissed. So far as the suit of the minor daughter was concerned, it was found that she could only take advantage of section 16 of the Act is a decree of nullity had been obtained as only the issue of a marriage in respect of which there was a decree of nullity could, in the eye of law, be regarded as legitimate and was entitled to succeed to the estate of the deceased father. The learned Single Judge came to conclusion that there was a lacuna in the provisions of the Act in that they did not deal with the legitimacy of children of a void marriage where a decree of nullity had not been obtained. While dealing with this situation, the learned single Judge also observed that decree of nullity could only be obtained when both the spouses were alive. In Letters Patent appeal Srinivasan J. , speaking for the Court, made the above observations which support the contention raised on behalf of the appellant that her petition under section 11 of the Act was maintainable and had been wrongly dismissed on the ground that the other spouse was dead.

(3.) ON behalf of the respondent, reliance was placed on the view taken by ramakrishnan, J. in Gowri Ammal v. Thulasi Ammal AIR 1962 Mad 510, that decree of nullity could only be obtained when both the spouses were alive. This view not having been accepted by the Division Bench in the Letters Patent appeal cannot be considered good law.