Ram Kripal v. State of U. P. — 1980 DIGILAW 362 (ALL)

JUDGMENT : M.P. METROTRA, J. 1. This petition arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. 2. The facts, in brief, are these. The Petitioner was issued the notice u/s 10(2) of the Act and he filed objections. They were decided by the Prescribed Authority by his order dated 28-12-1974, a certified copy whereof is on the record. Thereafter an appeal was filed and the same was decided by the appellate court by its judgment dated 11-7-1978, a certified, copy whereof is also on the record. Now the Petitioner has come up in the instant writ petition, and in support thereof, I have heard Sri G.N. Verma, learned Counsel for the Petitioner and in opposition, the learned Standing Counsel has made his submissions. 3. The controversy is in respect of the second wife of the Petitioner. The Prescribed Authority as well as the appellate court found that the Petitioner had a second wife. The Prescribed Authority granted benefit of two additional hectares of irrigated land on the ground that the two wives were two separate units and taking into consideration, the number of members in the family, which was held to be seven, it was held that the Petitioner was entitled to have 11.30 hectares as his ceiling area. Thereafter, the State filed an appeal and the appellate court allowed the said appeal holding that there was no evidence or material on the record to show that the second wife had been married by the Petitioner before the commencement of the Hindu Marriage Act, 1955, and therefore, the second wife should be held to be not legally wedded wife. In the result the appellate court held that the family of the Petitioner consisted of six members only and, therefore, he was entitled to have 9.30 hectares of irrigated land as his ceiling area and not 11.30 hectares as had been held to be the ceiling area by the Prescribed Authority. 4. Sri G.N. Verma contended that the only penalty of the second marriage in the presence of a spouse solemnised after the enforcement of the Hindu Marriage Act, is set out in Section 17 of the Act, which lays down as under: Section 17. 4. Sri G.N. Verma contended that the only penalty of the second marriage in the presence of a spouse solemnised after the enforcement of the Hindu Marriage Act, is set out in Section 17 of the Act, which lays down as under: Section 17. Punishment of bigamy.--Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code (XLV of 1860) shall apply accordingly. 5. The learned Counsel also referred to Sections 5, 11, 12, 13 and 16 of the Act, to contend that the second marriage in contravention of Section 5(i) of the Act is not absolutely ineffective in law, and the woman concerned still retains the status of wife despite the contravention of the aforesaid provision contained in Section 5(i) of the Act. He further contended that in any case, till such time as such marriage is declared to be a nullity by a petition presented u/s 11 of the Act, the woman continues to have the status of a wife and, therefore, the appellate court in the instant case was wrong in holding that the woman could not be treated to be a member of the Petitioner's family. In my view, this contention is not tenable. Section 11 clearly lays down that a marriage in contravention of Clauses (i), (iv) and (v) of Section 5 is null and void and may, on a petition presented by either party, be so declared by a decree of nullity. This section stands in vivid contrast to Section 12 of the Act which speaks of voidable marriages which have to be avoided before the marriage tie can come to an end. Though the expression 'nullity' has been used both in Section 11 and in Section 12, it has different legal significance in the two sections....In Section 11 the decree of nullity is declaratory and declares that there has never been a valid marriage in the eyes of law. The decree of nullity u/s 12 annuls the marriage. u/s 11 it is not obligatory that a party must obtain a declaratory decree of nullity. It is open to a party to do so but it is not obligatory. The decree of nullity u/s 12 annuls the marriage. u/s 11 it is not obligatory that a party must obtain a declaratory decree of nullity. It is open to a party to do so but it is not obligatory. If the marriage is a nullity then it well be of no consequence in law irrespective of whether a party to the marriage chose to obtain a declaratory decree u/s 11 or not. It is true that despite the marriage being a nullity, in the interest of the children of such marriage to enable them to be treated as legitimate, Section 16 of the Hindu Marriage Act was improvised by the legislature. However, that is a special provision for a special purpose. On the other hand, unless the marriage is annulled by a decree of nullity u/s 12, the marriage continues and remains good marriage in law. Section 17 of the Act is an additional provision which makes bigamy an offence. It is not correct to say that the same is the only consequence in the eyes of law. Consequences in Civil Law have nothing to do with the criminal nature of the act concerned which has been made punishable as an offence. Section 11 itself says that the marriage solemnised after the commencement of the Hindu Marriage Act shall be null and void if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5. The Supreme Court in Mohd. Ikram Hussain Vs. State of U.P. and Others, AIR 1964 SC 1625 laid down as under: Under Sections 5 and 11 of the Hindu Marriage Act (XV of 1955) a second marriage, with a previous married wife living, is null and void. 6. The Divisional Bench in Naurang Singh Chuni Singh Vs. Smt. Sapla Devi, AIR 1968 All 412 discussed Section 11 of the Hindu Marriage Act and observed as under: * * * * 7. The Division Bench, thereafter expressed its agreement with the observations made by the Patna High Court in Banshidhar Jha Vs. Chhabi Chatterjee, AIR 1967 Patna 277, where the said Court laid down as under: A marriage which is void ab initio does not...null and void from its inception for all intents and purpose. 8. The Division Bench, thereafter expressed its agreement with the observations made by the Patna High Court in Banshidhar Jha Vs. Chhabi Chatterjee, AIR 1967 Patna 277, where the said Court laid down as under: A marriage which is void ab initio does not...null and void from its inception for all intents and purpose. 8. In this connection Ishwar Singh v. Smt. Hukum Kaur AIR 1965 All 464 and Thirumathi Ramayammal v. Thirumathi Mathummal AIR 1974 Mad 321 may also be looked into. In the latter case it was held: Tae learned Counsel for the Appellants appears to be right when he says that the language employed in Section 16 is such that while children born of void marriage will be legitimate....The decree and judgment of the lower appellate court have, therefore, to be modified to the effect that the Plaintiffs will be entitled to a two-third share in the suit property. 9. Sri Verma placed reliance on the decision of Hon'ble T.S. Misra, J. reported in Smt. Sheohali Chatterjee v. Smt. Kamala Banerjee 1972 AWR 796. In my view, the said case has no application as the learned Judge in the said case had to deal with a marriage under the Special Marriage Act, 1872. There is a direct authority of this Court reported in Phul Chand v. State 1978 AWC 5 where it has been held that a second marriage solemnised after the enforcement of the Hindu Marriage Act would be void and "consequently, a tenure-holder marrying after the aforesaid Act would not be entitled to have additional hectares of land for the second wife. A marriage which is void is no marriage. What is void is non existent from its inception. It does not confer any status." Therefore, the learned Counsel for the Petitioner is not right in contending that even if the marriage had been contracted after the enforcement of the Hindu Marriage Act 1955, still, the tenure-holder was entitled to the benefit of treating the second wife as a member of the family. 10. However, it has seemed to me that the appellate court was not entitled to assume that the second wife must have been married after the enforcement of the said Act. Such an assumption in the facts of the case was not warranted. 10. However, it has seemed to me that the appellate court was not entitled to assume that the second wife must have been married after the enforcement of the said Act. Such an assumption in the facts of the case was not warranted. The State also does not seem to have contended that the second marriage had been contracted after the enforcement of the Hindu Marriage Act. It has seemed to me that the parties were taken unaware on this aspect of the matter as the decision of this Court in Phul Chand's case (Supra) was not available when the appellate court decided the said controversy. It is true that the said judgment in Phul Chand's case had been rendered earlier but it is not clear whether it had been reported on 11-7-1978 when the appellate court decided the appeal. In any case, the said judgment was not brought to the notice of the said Court. It should be seen that the law leans in favour of legitimacy rather than in favour of illegitimacy. Normally a marriage should be presumed to be legitimate rather than illegitimate. That is the normal approach. However, it must be admitted that the Hindu Marriage Act has introduced a special provision making second marriages in the presence of the first married spouse after the commencement of the Act to be void. In other words, bigamy has been prohibited amongst the Hindus after the enforcement of the said Act. It should also be admitted that the date of marriage is within the special knowledge of the parties concerned. Therefore, the burden to prove such date should be upon the party concerned. 11. Accordingly I allow this petition and quash the judgment of the appellate court so far as the said controversy is concerned. The case is remanded to the appellate court with a direction that the parties shall be allowed an opportunity to lead additional evidence on the question of the date of the second marriage of the Petitioner. The burden will be upon the Petitioner to establish that the second marriage took place before the enforcement of Hindu Marriage Act 1955. After entertaining such additional evidence, the appellate court shall decide whether the second marriage was contracted before or after the said Act. The burden will be upon the Petitioner to establish that the second marriage took place before the enforcement of Hindu Marriage Act 1955. After entertaining such additional evidence, the appellate court shall decide whether the second marriage was contracted before or after the said Act. In case the marriage was contracted after the said Act came into force then the second wife shall not be treated as a member of the Petitioner's family and the said family shall be held to consist of six members only. The ceiling area of the Petitioner shall be held to be 9.30 hectares of irrigated land. However, if it be held that the marriage was contracted before the commencement of Hindu Marriage Act, 1955, then the second wife shall be treated as a member of the family. In other words, the Petitioner's family shall be held to consist of seven members and his ceiling area shall be held to be 11.30 hectares of irrigated land. No other controversy shall be allowed to be raised before the appellate court hereafter. In the circumstances, there will be no order as to costs.