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1988 DIGILAW 361 (KER)

JANU v. YESODA

1988-07-29

SUKUMARAN

body1988
Judgment :- 1. Three minor girls and their mother -- plaintiffs -- are before this Court. They claim a share in the property of one Gopalan. Gopalan is now no more. He passed away in the year 1975. The 1st defendant is admittedly the widow and 2nd defendant, the son. Portions of the properties have been conveyed to defendants 3 to 5. All the defendants resist the plaint claim. They contend that there was no valid marriage between the 1st plaintiff and deceased Gopalan, and that consequently the plaintiffs 2 to 4 cannot claim the status of legitimate children of Gopalan. 2. Gopalan had married the 1st defendant. She had some ailments, which in effect denied to Gopalan the comforts of matrimony. He did not, however, snap that relationship. He married a second time: the 1st plaintiff was the new bride. There is massive evidence to justify the finding of the courts below that a marriage had in fact been solemnised between Gopalan and the 1st plaintiff. It was, however, contended that, in the eye of law, there was no marriage between Gopalan and 1st plaintiff, in view of the subsistence of the earlier marriage and the legal taboo against a marriage during the subsistence of an earlier one (vide S.11 of the Act). When the second marriage is thus null and void, the 1st plaintiff cannot claim the status of a wife and plaintiffs 2 to 4 cannot claim to be the legal heirs is the finding of the courts below. The courts below have thus upheld the defence contention and denied relief to the plaintiffs. They have come up in appeal. 3. S.16 of the Hindu Marriage Act, 1956, (hereinafter referred to as "the Act") had been pressed into service by the plaintiffs, to claim the relief, even in a situation where marriage of the 1st plaintiff with Gopalan is found to be null and void. 4. This contention needs careful examination, in the light of the statutory scheme and the relevant facts. 5. S.16 of the Act underwent an amendment, the Hindu Marriage Amendment Act 1976, Act 68 of 1976. The Section as it stood before the amendment reads as follows: "S. 16. 4. This contention needs careful examination, in the light of the statutory scheme and the relevant facts. 5. S.16 of the Act underwent an amendment, the Hindu Marriage Amendment Act 1976, Act 68 of 1976. The Section as it stood before the amendment reads as follows: "S. 16. Where a decree of nullity is granted in respect of any marriage under S.11 or S.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." The new Section is: "S. 16. (1) Notwithstanding that a marriage is null and void under S.11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2) Where a decree of nullity is granted in respect of a voidable marriage under S.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 at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub-s. (1) or sub-s. (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under S.12, 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." 6. In the situation as obtaining after the amendment of the Act, legitimacy is granted to a child born in a marriage, even when such a marriage is null and void under S.11. S.11 in turn, deals with situations where a marriage solemnised after the commencement of the Act is void as offending Clause.1, 4 and 5 of S.5. Sub-clauses 4 and 5 of S.5 have no application in the present case; but sub-s.1 has. That provision engrafts an exception to the possibility of a marriage solemnised between two Hindus in a situation where neither party has a spouse living at the time of marriage. In the present case, on the findings of the courts below, there was a subsisting marriage between Gopalan and the 1st defendant. If that be so, S.5 (1) would be attracted rendering the marriage which the plaintiff claims as having taken place in 1959 as null and void, on a combined operation of S.5(1) and S.11 of the Act. 7. The object of the above amendment is to confer on children born in a marriage, a status of legitimacy. Not merely status but also propriety rights though not of an extensive character. No rights in relation to the property of any person other than the parents could be claimed by the children who get the benefit of a legitimacy status under S.16 of the Act. In other words, the statutory fiction is available only as regards the property of the parents but not otherwise or beyond. If children born under such auspices are to be on the same pedestal as legitimate children born out of wedlock, then, they have to be reckoned as rightful entrants when it comes to the question of distribution of the patrimony. 8. If children born under such auspices are to be on the same pedestal as legitimate children born out of wedlock, then, they have to be reckoned as rightful entrants when it comes to the question of distribution of the patrimony. 8. The courts below have taken the view that the benefit conferred under the Hindu Marriage Act, 1956 will not be available when it comes to a question of the rights reckonable under the Hindu Succession Act. I am of the view that in so holding, the courts below have committed an obvious error of law. When the succession opens, the question as to who all are legal heirs, has necessarily to be examined on the basis of the provisions in the Succession Act. Clause (a) in class I among the heirs referred to in the Schedule would take in a son or a daughter. The term 'son' or 'daughter' was interpreted to mean as legitimate son or legitimate daughter. The decision of this Court in Appu v. Meethani, 1975 KLT 699 would make the position clear. It is precisely to jettison the effect of such a legal position that the Amendment Act of 1976 had been introduced and implemented. The result would be that notwithstanding a disability arising out of the illegality or inefficacy of a marriage, the children would have a share in the property of the parents. 9. If this view is taken ordinarily, the decrees of the courts below will have necessarily to be upset and a preliminary decree in favour of the plaintiffs for partition passed. 10. Counsel for the respondents submitted that for invoking S.16, there should have been a solemnisation of the marriage which is made mention of in S.11 and referred to in S.5. If there is no solemnisation of the marriage at all, other questions would not, according to counsel, arise. The situation earlier prevailing was, according to him, that notwithstanding such a solemnisation of the marriage, it did not have legal efficacy and consequently the off springs of such a union, were not reckoned at all while dealing with the distribution process of a man who passed away, despite his physical union with the woman and the fact that the children had been born in that union. That certainly would raise a question whether there had been a marriage solemnised as visualised in S.5 and 11, and as referred to in S.16. 11. The appellate court, made a reference to this aspect, though a very brief and cryptic one. Counsel on either side, presented all aspects in the light of the question having become very germane and relevant, when the narrow interpretation of S.16 had been discarded by me. 12. Counsel for the respondents submitted that there was no acceptable evidence in relation to the solemnisation of a marriage between the 1st plaintiff and deceased Gopalan. He subjected the testimony of P.Ws.1 and 2 to an excruciating attack and referred to passages in the cross-examination of P.W.1 in particular, to indicate that the foundation of the claim of marriage was Ext.Al and not an independent performance of the necessary formalities of a proper marriage known to the parties. 13. The evidence of P.Ws.1 and 2, would refer to the generality of a statement that the marriage had been conducted. In a situation where there was keen controversy about the existence of a marriage, parties would have been naturally expected to give more cogent evidence about the solemnisation of the marriage. It may be that in a given situation, general statement about solemnisation of marriage without corroborative evidence, may be felt to be inadequate by a court to enter finding about the solemnisation of a marriage. In the present case, the situation is substantially different. Way back in 1959 Ext.Al was executed between Gopalan and the 1st plaintiff. The registered document does indicate a clear statement by none other than Gopalan about an anterior solemnisation of the marriage between Gopalan and the 1st plaintiff. The statement has its effect and impact in relation to the assessment of the contentions of the plaintiff in that general document. Referring to the significance of such a statement as contained in the decision of the Orissa High Court in Vaikuntam v. Puppala, AIR 1971 Orissa 49, this Court in Janaki Amma v. Rama Warier, 1985 KLT 283, had indicated the emphatic effect such a statement in the registered document would have. Looked that way, I am of the view that there is nothing suggestive of a fraudulent scheme on the part of either Gopalan or of 1st plaintiff when they executed the document of 1959. Looked that way, I am of the view that there is nothing suggestive of a fraudulent scheme on the part of either Gopalan or of 1st plaintiff when they executed the document of 1959. There cannot be any ambiguity at all, about Gopalan's statement that he had solemnised a marriage with the 1st plaintiff. That marriage, if the recitals are correct, had been preceded by mutual love Gopalan was naturally the competent person to speak about a transaction in which he is one of the two principal actors. Both parties are agreed that there was a solemnisation of the marriage. 14. The decision of the Orissa High Court in AIR 1971 Orissa 49 supra. which has been adopted with approval by this Court in 1985 KLT 283 supra, would have a strong effect in the evaluation of the evidence. The stray sentences in the cross-examination of PW.1, a rural woman suffering all the handicaps of backwardness, or of DW.1, would not detract from the effect and relevance of the admission as contained in Ext.A1. That the children were born to Gopalan is the evidence which could be readily accepted in the present case. Ext.A6 would contain some corroborative material, about a continued living of Gopalan together in a house, along with the plaintiffs. Looked that way, despite a legal inefficacy in the second marriage, Gopalan and the 1st plaintiff could be found to be parties who have solemnised the marriage, and plaintiffs 2 to 4 the issues born out of such an invalid marriage. The legal disability having been removed by Act 68 of 1976, the court should not be half-hearted in giving the full force and effect to that Parliamentary will. The rights flowing from S.16 would have necessarily to be recognised in the case of the plaintiffs. The innocent children should not be exposed to cruel treatment, even in the matter of a distribution of the patrimony. The omissions in this behalf, collated and collected by the expert bodies who have thought much about the children and their innocence, and their disabilities arising out of the indiscretion of one or both of the parents, had all been evaluated by the Parliament when it made a liberal, and in a sense, a progressive, piece of legislation in the year 1976. If at all, the court should give it a forward push and a projection which will advance the object of the statute.. By upsetting the concurrent decrees of the courts below, this Court would be giving such a forward direction to the statute and effectuate the intention of the Parliament as unambiguously given expression to by a conscious amendatory act, Act 68 of 1976. 15. Other questions will have necessarily to be considered by the trial court, in the light of the declaration about the entitlement of their share as far as the plaintiffs are concerned. Counsel for the alienees respondents 4 and 5 submitted that equity which could be claimed by him may have to be considered. I have no doubt that those equities will be looked into by the trial court when the matter is dealt with in the light of the directions and observations contained in the judgment. The second appeal is allowed. There will not be any order as to costs having regard to the various circumstances. The parties will appear before the trial court on 5th of September, 1988. Allowed.