( 1 ) "a million spermatozoa ALL of them alive : OUT of their cataclysm but one poor ( 2 ) PARAYANKANDIYIL Kanhirakunnath Kurnugodan Raman Nari was the proud father of 14 children from two wives, the first being Ammu Amma, who is the mother of the respondents 1 to 9, and the second being a lady of equally long name, namely, Smt. Parayankandiyal Eravath Kanapravan Kailliani Amma (appellant No. 1), who is the mother of appellants 2 to 6. He had a flair for two; two wives, two sets of children, two sets of properties, in two different States. P. K. K. Raman Nair died on 9/01/1975, and since he left behind considerable movable and immovable properties in the States of Kerala and Tamil Nadu, litigation was the usual and destined claimity to befall the children for settling the question on inheritance. ( 3 ) THE litigation stared with the filing of O. S. No. 38 of 1976 and O. S. No. 39 of 1976 in the Court of Subordinate Judge at Badagara, Kerala, by the respondents for a decree for possession over certain properties, which allegedly were in the possession of the appellants, and for half share by partition in the tenancy land held in common by late P. K. K. Raman Nair with his second wife, namely, appellant No. 1. The appellants did not lag behind and they filed a suit (O. S. No. 99 of 1977) for partition of the properties of late P. K. K. Raman Nair, which were said to be in the possession of the respondents. ( 4 ) RESPONDENTS had instituted the suits on the basis of their title, with the allegations that the appellants Nos. 2 to 6 and their mother, namely, appellant No. 1 were not the legal heirs of Raman Nair, while the appellants had instituted their suit (O. S. No. 99 of 1977) for partition of the properties indicated in Schedules A, B and C to the plaint, on the ground that they being the legal heirs of Raman Nair were entield to a share in the properties left by him along with the respondents. ( 5 ) ALL the three suits were tried together by the trial Court and were dismissed with the finding that the second marriage of Raman Nair with appellant No. 1 had taken place at time when his first wife, Ammu Amma, was alive and, therefore, it was invalid, with the result that the appellant Nos. 2 to 6, who were the children born of the second marriage, would not inherit any share in the properties left by Raman Nair. ( 6 ) THREE appeals were consequently filed in the High Court and the only question urged before the High Court was that the second wife and children were also the legal heirs of Raman Nair, but the High Court by its impugned judgment and order Dated 22-6-1989 dismissed the appeals with a little modification that the house in the plaint schedule property in O. S. No. 39 of 1976 was directed to be allotted, as far as possible, to appellant No. 1 as she was living in that house with the children. Hence these appeals. ( 7 ) MR. P. S. Poti, Sr. Advocate, appearing on behalf of the appellant, has contended that the trial Court as also the High Court were in error in dismissing the suit of the appellant for partition of their share in the property as the appellants were the legal heirs of Raman Nair and the inheritance could not be denied to them merely on the ground of his second marriage with appellant No. 1, particularly as Section 16 of the Hindu Marriage Act, 1955 specifically provides that, notwithstanding that a marriage is null and void, and child of such marriage, who would have been legitimate if the marriage had been valid, shall be legitimate and get an interest in the property of his parents, but not in the property of any other person. ( 8 ) THE contention of the learned counsel for the respondent, on the contra, is that benefit of Section 16 can be given only to such marriage as are null and void under Section 11 of the Hindu Marriage Act 1955 and not to any other marriage. ( 8 ) THE contention of the learned counsel for the respondent, on the contra, is that benefit of Section 16 can be given only to such marriage as are null and void under Section 11 of the Hindu Marriage Act 1955 and not to any other marriage. His contention further is that a marriage would be null and void under Section 11 only if it is performed after the coming into force of the Act and, therefore, all other marriages which were performed prior to the Hindu Marriage Act, 1955, would not be covered by Section 16 and children born of such marriage would not be entitled to the benefit of statutory legitimacy or inheritance. ( 9 ) IT may be mentioned that one of the contentions raised before the High Court was if the benefits of legitimacy contemplated by Section 16 of the Act is not extended to children born of the second or invalid marriages held prior to the Act, the provisions would have to be struck down as violative of Article 14 of the Constitution, inasmuch as they purport to create two classes of illegitimate children, namely, those born of the void marriages performed after the enforcement of the Act. This was not accepted by the High Court which was of the opinion that the provision of Section 16 were not violative of Article 14 of the Constitution. ( 10 ) MARRIAGE, according to Hindu Law, is a holy union. It is not a contract but a Sanskara or sacrament. ( 11 ) THE religious rites solemnizing a marriage include certain vows and prayers by parties made before the altar of God. Mr. K. P. Saksena has reproduced the original Sanskrit vows in his book "commentaries on the Hindu Marriage Act, 1955" from the "vivah Padathi" (marriage code according to Laugakshi) complied and translated by Pt. Bindheswar Nath Razdan Shastri, Rak, Vaidya. The translated portion is given below : "in the three mantras of Laja (parched paddy) Hawan, the bride says :- "i give oblation to the Fire God, the destroyer of enemies. With the grace of the said destroyer of enemies, may I never be separated from my husbands house. OTHER unmarried girls have worshipped the Fire God, the sustainer of the earth, for the fulfillment of their desire. With the grace of the said destroyer of enemies, may I never be separated from my husbands house. OTHER unmarried girls have worshipped the Fire God, the sustainer of the earth, for the fulfillment of their desire. Knowing that their desire were fulfilled, I have also made an oblation, may the same Fire God, sustainer of the earth, be pleased and with his grace may I never be separated from my husbands house. I worship Shankar in the from of Fire God, the God of good repute and the protector of husband. May by the grace of Shankar, the Fire God. I and my husband be free from death as the ripe melon is freed from its knot in the creeper. With His grace may I never be separated from my husbands house. MAY this oblation be acceptable to the Fire God. May sacred fire separate me from this (my fathers) house but never from my husband"s. MAY my husband live long and my kinsen be prosperous. May this oblation be acceptable to the Fire God. I cast this parched paddy in fire. May it make you (the husband) and me prosperous. The boon be granted by agni. " SIMILARLY, bridegroom says to the bride :- "o bride ! trace your fist step, by this may our foodstuffs increase. May God let me keep your company till I live. O bride ! trace your second step, by this may our strength grow, may God let me keep your company till I live. O bride ! trace your third step, by this may our wealth increase. May God let me keep your company till I live. O bride ! trace your fourth step, by this may our comforts and pleasures increase. May God let me keep your company till I live. O bride ! trace your fifth step. May our progeny increase. May God let me keep your company till I live. O bride ! trace your sixth step. May we always get the fruits and flowers of the six seasons. May God let me keep your company till I live. O bride ! trace your seventh step. By this may we live long and our relations be loving. May God let me keep your company till I live. O bride ! trace your sixth step. May we always get the fruits and flowers of the six seasons. May God let me keep your company till I live. O bride ! trace your seventh step. By this may we live long and our relations be loving. May God let me keep your company till I live. " ( 12 ) THE effect of these promises and prayers is that the marriage becomes indissoluble and each party becomes the complementary half of the other so that separation becomes unthinkable. ( 13 ) THE terms prescribed by the Dharama Shastras, secure to the wife a high and strong position, as is indicated by the dialogue between the bride and the bridegroom during Saptapadi which again have been quoted in his book by Mr. K. P. Saksena on being supplied to him by Saahityacharya Shri Pandit Rameshwar Dwivedi. They are as under :- "the bride groom says :- "madhupark has destroyed sins in the fire of Laja Hawan, so long as the girl does not sit on the left side, she is unmarried. MADHUPARK have been performed first and oblation of parched paddy having been offered to the fire, so long as the girl does not sit on the left side she is unmarried. THE bridegroom says to the bride : "do not go without my permission, to a park, to one who is drunk, to Kings Court and to your fathers house. " "the bride says "perform along with me the Bajpeya, Ashwamedha and Rajsuya Yogas, Tuladan and marriage. " "with my consent and along with me consercreate Baoli, well and tank etc. , and Gods, temples and take bath during the months of Magh, Kartik, and Baisakh. SELECT a friend or enemy, a place worth a visit or not, go on pilgrimage, perform a marriage and engage in framing and commerce after obtaining my consent and along with me. RENDER unto my hands what you earn by the grace of God whether it be hundered, a thousand, a hundred thousand a thousand million and ten billion. AFTER obtaining my consent purchase, sell or exchange a cow, a bull or a buffalo, a goat, an elephant, a horse or a camel. MY Lord, you should be my fired in the same way as Krishna is of Arjun, Brashapati is of Indra and as Swati is of Chatak. AFTER obtaining my consent purchase, sell or exchange a cow, a bull or a buffalo, a goat, an elephant, a horse or a camel. MY Lord, you should be my fired in the same way as Krishna is of Arjun, Brashapati is of Indra and as Swati is of Chatak. " ( 14 ) ONCE "saptapadi" is completed the marriage tie becomes unbreakable. ( 15 ) THE legal position of second marriage under the original Hindu Law is described in principles of Hindu Law by Jogendra Chunder Ghose, 1903 Edition, as under : "polygamy was not allowable according to the spirit of the law, but it was very generally practiced, though the second wife could not be associated in religious sacrifices, and was styled a wife not for duty but for lust. ( 16 ) SIR Gooroodas Banrjee in his book Hindu Law of marriage and Stridhana, 4th Edition (reprinted in India in 1984)" lays down as under : "a Hindu husband is always permitted to marry again during the lifetime of his wife, though such marriage, if contracted without just cause, is strongly disapproved. "the first is the wife married from a sense of duty," and the others are regarded as married from senxual motives. "with sorrow," says Daksha feelingly, "does he eat who has two contentious wives; dissension, mutual enmity, meanness, and pain distract his mind; but his commentator, Jagannath, who lived at a time when kulinism and polygamy were widely prevalent, tries to soften the effect of the text, by showing that if the wives be complacent, none of the evil consequences would follow. The causes which justify suppression of the wife and re-marriage during her lifetime, are barrenness, ill-health, ill-temper, and misconduct of the wife. IT should be observed that supersession (which is adhivedana in Sanskri) here means, as explained in the Mitakshra and the Sobodhini, merely the contracting of a second marriage while the first wife lives; and it does not imply that the first wife is actually forsaken, for that her place is taken by the second, in respect of any matter except perhaps the husbands affection. It is true that Vijnaneswara in one place uses supersession and desertion as synonymous, but Sulpani, another high authority, uses the term in the sense given above, and Jagannatha appears to follow the latter. It is true that Vijnaneswara in one place uses supersession and desertion as synonymous, but Sulpani, another high authority, uses the term in the sense given above, and Jagannatha appears to follow the latter. This view is further confirmed by the rules regarding precedence among wives, which is settled by law with a view to prevent disputes. " ( 17 ) MR. K. P. Saksena, in his Commentary on the Hindu Marriage Act, 1955, 3rd Edition (1964), writes as under : "according to the Hindu jurisprudence, a husband is always permitted to marry again during the lifetime of the first wife but such marriage, if contracted without just cause, is strongly disapproved. Many has justified the supersession of the wife and remarriage during her lifetime on the following grounds, viz. (i) barrenness, (ii) ill-health, (iii) ill-temper and misconduct of the wife,. HE further maintains that (1) that first wife is married from a sense of duty, and (2) the others are regarded as married from sexual motives,. SUPERSESSION has been explained in Mistakshara and Subodhini as a contract of second marriage while the first wife is alive and not the desertion of the wife, for in desertion she is deprived for her rights such as association in performance of religious rites, religious duties, adoption, etc. In Ranjit Lal v. Bijoy Krishna, it has been held that adoption by a senior widow though late in time is valid notwithstanding an earlier adoption by a junior widow without the consent of the senior widow whose adoption was declared to be invalid, though both were authorised to adopt by the deceased. The Rishis do the approve of unrestricted polygamy. They permit men to take a second wife in the lifetime of the first only under special circumstances. The Rishis do the approve of unrestricted polygamy. They permit men to take a second wife in the lifetime of the first only under special circumstances. Thus Manu says : "a wife, who drinks any spurious liquors, who acts immorally, who shows hearted to her lord, who is incurably diseased, who is mischievous, who wastes his property, may at all times be superseded by another wife, A barren wife may be superseded by another in the the 8th year; she who brings forth stillborn children or whose children all in fants die in the tenth; she who brings forth only daughters, in the elevent and she who speaks unkindly, without delay," It is, therefore, incorrect to suppose that the Hindu Law permits a man to espouse a second wife during the life of the first except under particular circumstances. Manu appears to present the perfect ideal of conjugal fidelity by requiring both the husband and the wife to be faithful to each other. Thus in conclusion on the subject of mutual duties of husband and wife, the sage ordains : "let mutual fidelity continue till death : this, in few words, may be considered as the supreme law between husband and wife; let a man and a women united by marriage, constantly beware. least at any time being disunited they violate their mutual fidelity. " (Manu IX, 101 -102; V, 162-168 ). This passage clearly implies monogamy to be essential condition of the supreme law of conjugal duties. But it should be observed that the sages did not prohibit polygamy which was prevelant at the time but the tendency of their legislation was to discourage that practice by investing the first marriage with a religious character, and by permitting the marriage for religious purposes of second wife in the lifetime of the first, only in certain contingencies when there was a failure of the object of marriage. ( 18 ) FROM the above, it would be seen that though polygamy was not permitted, a second marriage was allowed in a restricted sense, and that too, under stringent circumstances as for example, when there was to total failure of the object of marriage. Monogamy was the Rule and Ethos of the Hindu Society which decided a second marriage and rejected it altogether. The touch of religion in all marriage did not allow polygamy to become part of Hindu culture. Monogamy was the Rule and Ethos of the Hindu Society which decided a second marriage and rejected it altogether. The touch of religion in all marriage did not allow polygamy to become part of Hindu culture. This was the effort of community. Otherwise, this Court in Bhaurao v. State of Maharashtra ARI 1965 SC 1564 observed:- "apart from these considerations, there is nothing in the Hindu Law, as applicable to marriage till the enactment of the Hindu Marriage Act, 1955, which made a second marriage of a male Hindu, during the lifetime of his previous wife, void. " ( 19 ) THEREFORE, if a second marriage did take place, children born of a such marriage, provided it was not otherwise invalid, were not illegitimate and in the matter of inheritance, they had equal rights. ( 20 ) IN every community, unfortunately, there are people who exploit even the smallest of liberties available under Law and it is at this stage that the law interevenes to discipline behavior. Various States, therefore, passed their separate, though almost similar, laws relating to marriage by Hindus restricting the number of wives to only one by providing specifically that any marriage during the lifetime of the first wife would be void. ( 21 ) THERE is no dispute that Mr. Raman was a nair and belonged to Malabar Tarwad family. The personal law by which he was governed was the Marumakattayam Law of Malabar comprising of a body of Judicially recognised customs and usages, which prevailed among a considerable Section of the people inhabiting the West of South India. The essential difference between Marumakattayam and other schools of Hindu law was that the Marumakattayam school was founded on the matriarchate while others are founded upon the agnatic family. In the Mitakshara joint family the members claim through descent from a common ancestor, but in a Marumakattayam family, which is known as the Tward, the descent is from a common ancestress. Mr. Sundara Ayyar, who was a Judge of the Madras High Court, has already written an excellent treatise on the customary laws of Malabar which has been recognised as an authoritative work by the Privy Council in Kochunni v. Kuttanunni, AIR 1948 PC 47. Mr. Sundara Ayyar, who was a Judge of the Madras High Court, has already written an excellent treatise on the customary laws of Malabar which has been recognised as an authoritative work by the Privy Council in Kochunni v. Kuttanunni, AIR 1948 PC 47. This Court had also had an occasion to refer to board aspects of this law in a few decisions it was indicated that : "in the Marumakkathayam system of law succession to property is traced though females, though the expression Marumak-kathayam strictly means inheritance by sisters children. It is because of this that a mans heirs are not his sons and daughters, but his sisters and their children-the mother forming the stock of descent and inheritance being traced through mother to daughter, daughters daughter and so on. A Marumakkathayam family is known as a Tarwad and consists of group of persons, males and female, all tracing descent from a common ancestress. An ordinary Tarwad consists of the mother, her children, male and females, the children of such females and their descendants in the female line, how-low-soever, living under the control and direction of the Karnavan, who is the eldest mala member. The junior male members are also proprietors and have equal rights. The Tawad is thus a typical matriachal family. " ( 22 ) MARUMAKATTAYAM law was modified and altered by Madras Marumukattayam Act, 1932 (22 of 1933 ). This Act was in force when Raman Nair married his first wife, Ammu Amma, in 1938. Section 5 of the Act provides as under : "5 (1) During the continuance of a prior marriage which is valid under Section 4, any marriage contracted by either of the parties thereto on or after the date on which this Act comes into force shall be void. (2) On or after the said date, any marriage contracted by a male with a marumukkattayi female, during the continuance of a prior marriage of such male, shall be void, notwithstanding that his personal law permits of polygamy. IT thus contained a specific prohibition that during the continuance of a prior marriage, any marriage contracted by either of the parties thereto shall be void. ( 23 ) BUT Heart has its own reasons. In spite of the statutory prohibition, Raman Nair contracted a second marriage with respondent No, 1 in 1948. IT thus contained a specific prohibition that during the continuance of a prior marriage, any marriage contracted by either of the parties thereto shall be void. ( 23 ) BUT Heart has its own reasons. In spite of the statutory prohibition, Raman Nair contracted a second marriage with respondent No, 1 in 1948. ( 24 ) THE Marumakkattayam Act, 1932 was repealed by Section 7 (2) (read with the Schedule) of the Kerala Joint Hindu Family System (Aboilition) Act, 1975 (Act 30 of 1976) with effect from 1-12-1976. Obviously with the repeal of the Act in 1976, the prohibition in Section 5 that the second marriage would be void, ceased to be operative. ( 25 ) LEARNED counsel for the appellant, therefore, contended that Madras Act 22 of 1933 which contained a prohibition against second marriage having been repealed by the Kerala Joint Hindu Family System (Abolition) Act, 1975, the original Hindu law, based on Shastras and scriptures, would revive and consequently Ramans marriage with appellant No. 1 would become valid particularly as the repeal would have the effect of obliterating the Madras Act 22 of 1993 from the Statute Book from its inception as if it never existed. The contentions are without substance and deserve immediate rejection, on account of the reasons which we are setting out hereinbelow. ( 26 ) SECTION 7 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act No. 30 of 1976) is reproduced below :- "7. Repeal- (1) Save as otherwise expressly provided in this Act, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediate before the commencement of this Act shall cease to have effect with respect to any matter for which provisions is made in this Act. (2) The Acts mentioned in the Schedule, in so far as they apply to the whole or any part of the State of Kerala are hereby repealed. " ( 27 ) IN the Schedule appended to the Act, the Madras Act is mentioned at Serial No. 1. ( 28 ) SECTION 4 of the Kerala Interpretation and General Clauses Act provides, inter alia, as under : "4. " ( 27 ) IN the Schedule appended to the Act, the Madras Act is mentioned at Serial No. 1. ( 28 ) SECTION 4 of the Kerala Interpretation and General Clauses Act provides, inter alia, as under : "4. Effect of repeal - Where any Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not - (A) revive anything not in force or existing at the time at which the repeal takes effect; or (B) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or (C) affect any right, privilege, obligation or liability acquired, accused or incurred under any enactment so repealed; or (D ). . . . (E ). . . . " ( 29 ) IN view of these provisions, it is necessary to examine whether a different intention is expressed in the Kerala Joint Hindu Family System (Abolition) Act, 1975 and what actually is the effect of repeal. ( 30 ) THE provisions of Section 7 (2), by which the Madras Act has been repealed, have been quoted above. The repealing Act does not indicate any intention contrary to the provisions contained in the Kerala Interpretation and General Clauses Act which, therefore, will apply with full vigour on the principle that whenever there is repeal of any enactment, the consequence indicated in Section 4 would follow, unless there was any saving clause in the repealing enactment or any other intention was expressed therein. In the case of simple repeal, there is hardly any room for the expression of a contrary view. ( 31 ) THE instant case, as would appear from a perusal of Section 7 (2) of the repealing enactment, is a case of repeal simpliciter. In view of Section 4 (b) of the Kerala Interpretation and General Clauses Act, the previous operation of Madras Act 22 of 1933 will not be affected by the repeal not will the repeal affect anything duly done or suffered thereunder. So also, a liability incurred under that Act will remain unaffected and will not be obliterated by the repeal as indicated in clause (c) of Section 4. So also, a liability incurred under that Act will remain unaffected and will not be obliterated by the repeal as indicated in clause (c) of Section 4. ( 32 ) RAMAN had contracted a second marriage, in the lifetime of his first wife, in 1948 when Madras Act 22 of 1933 was in force, which prohibited a second marriage and, therefore, the consequences indicated in the Act that such a marriage would be void would not be affected nor will the previous operation of the Act be affected by the repeal of that Act. The repeal does not mean that Madras Act 22 OF 1933 never existed on the Statute Book nor will the repeal have the effect of validating Ramans second marriage, if it was already a void marriage under that Act. ( 33 ) LEARNED counsel for the appellant then contended that appellant Nos. 2 to 6 shall, for purposes of inheritance, be treated as legitimate sons under Section 16 of the Hindu Marriage Act, 1956 and, therefore, their suit ought to have been decreed. He also contended that if benefit of legitimacy cannot be given to the appellants on the ground that Section 16 does not apply to them and applies to those illegitimate children who were born of a void marriage performed after the Act came into force, the provisions will have to be struck down as discriminatory and violative of the rule of equality before law contained in Article 14 of the Constitution. We shall examine both the contentions. ( 34 ) WHENEVER an enactment is attacked on the ground of discrimination, it becomes the duty of the Court to look to the legislation as a whole and to find out why class legislation was introduced and what was the nexus between the classification and the object sought to be achieved by it. In order to decipher this question we have to a peer into the background. ( 35 ) BEFORE the enactment of the Hindu Marriage Act 1955, there existed general Hindu Law, based upon scriputes and Shastras, including their exposition by scholars, which regulated marriage amongst Hindus. There were different customs and usages prevalent in different parts of the country. In order to decipher this question we have to a peer into the background. ( 35 ) BEFORE the enactment of the Hindu Marriage Act 1955, there existed general Hindu Law, based upon scriputes and Shastras, including their exposition by scholars, which regulated marriage amongst Hindus. There were different customs and usages prevalent in different parts of the country. ( 36 ) IN the Malabar area with which we are concerned in the instant case and which now forms part of the Kerala State, there were different customs regarding marriage prevelant among different groups of people. Local laws were also made regulating marriages among people inhabiting particular local area, as for example, in the Malabar area there was the Madras Marumkkattayam Act (No. 22 of 1933 ). Section 5 of this Act prohibited a second marriage during the lifetime of a spouse and specifically provided that such a marriage would be void. It laid down as under : "5. (1) During the continuance of a prior marriage which is valid under Section 4, any marriage contracted by either of the parties thereto on or after the date on which this Act comes into force shall be void. (2) On or after the said date, any marriage contracted by a male with a marumakkattayi female, during the continuance of a prior marriage of such male, shall be void, notwithstanding that his personal law permits of polygamy. ( 37 ) IN the same area, there was the Madras Namboodri Act (No. 21 of 1933) which was applicable of Namboodri Brahmans not governed by Marumakkattayam law of inheritance. This Act also prohibited bigamy but it was only partial prohibitions as it was provided by Sections 11 and 12 of the Act as under : "11. No. Nambudri who has a Nambudri wife living shall marry another Nambudri woman except in the following cases :- (A) where the wife is afflicted with an incurable disease for more than five years, (B) where the wife has not borne him any child within ten years of her marriage, (C) where the wife has become an outcaste. " "12. (1) Any Nambudri male who contracts a marriage in contravention of Section 11 shall be punished with fine which may extend to one thousand rupees, but a marriage so contracted shall not be deemed to be invalid. " "12. (1) Any Nambudri male who contracts a marriage in contravention of Section 11 shall be punished with fine which may extend to one thousand rupees, but a marriage so contracted shall not be deemed to be invalid. (2) Any person who conducts, directs or abets the performance of any marriage in contravention of Section 11 shall be punished with fine which may extend to one hundred rupees. " ( 38 ) THUS, a second marriage was permissible under certain circumstances enumerated in Section 11. It was also indicated that the second marriage would not be void. Thus, in the same region in respect of different groups of people, different laws were made, although both consisted of people professing Hindu religion. This anomaly was removed by repealing Sections 11 and 12 of the Act by Section 8 of the Madras Hindu (Bigamy Prevention and Divorce) Act 1949, (Madras Act VI of 1949) with the result that Section 9 of the Namboodari Act, which provided as under : "9. Notwithstanding any custom or usage to the contrary every major male Nambudri shall, subject to the provisions of Section 5 of the Madras Marumakkattayam Act, 1932, and any other law for the time being in force, be at liberty to marry in his own community. " BECOME operative with full force and vigor. Since Section 9 was to operate subject to the provisions of Section 5 of the Tamil Nadu (Madras) Murumakkattayam Act 1932, a Namboodari could not after deletion of Sections 11 and 12, marry a second wife during the lifetime of the first wife. ( 39 ) THE evil of bigamy was sought to be prevented by regional laws made either prior to or after the Constitution of India. Since the attempt of these laws was to introduce social reforms in the community at regional levels, the High Court, in which the validity of such laws was challenged, particularly after the enforcement of the Constitution on the ground of violation of Articles, 14, 15 and 25, upheld those laws with the finding recorded in strong terms that the laws were neither discriminatory nor did they infringe Article 25 of the Constitution. ( 40 ) THE Bombay High Court in State v. Narsu Appa Mali. ( 40 ) THE Bombay High Court in State v. Narsu Appa Mali. ILR (1951) Bombay 775 : 55 Bombay Law Reporter 779 : AIR 1952 Bombay 84, rejected the argument that the Bombay (Prevention of Hindu Bigamu Marriage) Act, 1946 discriminated between Hindus and Muslims by enforcing monogamies on Hindus and not on Muslims as the Court was of the opinion that the State was free to embark upon social reforms in states. It was pointed out by the Court that penalties provided in the Act, which were more stringent than those provided in the Indian Penal Code, were rightly prescribed and were justified on the ground that having regard to the outlook of the Hindus, it may have been considered necessary to impose server penalties in order to implement the law effectively. ( 41 ) THE Madras High Court in Srinivasa Iyer v. Saraswathi Ammal, ILR (1953) Madras 78 : AIR 1952 Madras 193, upheld the validity of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 and held that the Act did not violate Article 15 or 25 and there was no discrimination between Hindus and Mohammedans on the ground of religion. ( 42 ) THE Full Bench of the Andhra Pradesh High Court in G. Sambrireddy v. G. Jayamma, AIR 1972 Andh Pra 156, considered both the Bombay and Madras decisions referred to above and held that Sections 11 and 17 of the Hindus marriage Act, 1955 did not violate Article 15 (1) as Sections 5 (1), 11 and 17 merely introduced a social reform for the class of persons to whom the Act applied. ( 43 ) PARLIAMENT consisting of the representatives of the people knew, and the Courts can legitimately presume that it knew, the situation prevailing all over Indian with regard to the different laws, customs and usages regulating marriages among Hindus and that it further knew their problems and their need for a uniform law concerning marriages. ( 44 ) IT was in this background that Hindu marriage Act, 1955 was enacted by Parliament to amend and codify the law relating to marriage among Hindus. ( 44 ) IT was in this background that Hindu marriage Act, 1955 was enacted by Parliament to amend and codify the law relating to marriage among Hindus. The Act applies to every person who is a Hindu by religion in any of its forms or developments, indicated in Section 2 thereof, including at person who is a Buddhist, Jain or Sikh by religion, Besides other categories of persons who are to be treated as "hindus", the explanation appended to Section 2 provides that any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion, shall also be a Hindu. It also provides that any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh and who is brought up as a member of the tribe, group, community or family to which such parent belongs, will be a Hindu. ( 45 ) OTHER relevant provisions of the Act may also be noticed. ( 46 ) SECTION 4 of the Act provides that the Act shall have an overriding effect. It provides as under : "4. Overriding effects Act - Save as otherwise expressly provided in this Act:- (A) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision in made in this Act. (B) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. " ( 47 ) CONDITIONS for a Hindu Marriage are indicated in Section 5 which is quoted below : "5. (B) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. " ( 47 ) CONDITIONS for a Hindu Marriage are indicated in Section 5 which is quoted below : "5. Conditions for a Hindu marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled namely:- (I) neither party has a spouse living at the time of the marriage; (II) at the time of the marriage neither party - (A) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (B) though capable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (C) has been subject to recurrent attacks of insanity or epilepsy; (III) the bridegroom has completed the age of (twenty one years) and the bride the age of (eighteen years0 at the time of the marriage; (IV) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of marriage between the two; (V) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. " ( 48 ) SECTION 16, as originally enacted, provides as follows : "16. " ( 48 ) SECTION 16, as originally enacted, provides as follows : "16. Legitimacy of children of void and voidable marriages : 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. " ( 49 ) SECTION 11 and 12 which are referred to in Section 16 above are also quoted below : "11. VOID marriages - Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto (against the other party), be so declared by a decree of nullity if it contravenes any one of the condition specified in clause (i), (iv) and (v) of Section 5. " "12. VOID marriages - Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto (against the other party), be so declared by a decree of nullity if it contravenes any one of the condition specified in clause (i), (iv) and (v) of Section 5. " "12. Voidable marriages - (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely : (A) that the marriage has not been consummated owing to the impotence of the respondent; or (B) that the marriage is in contravention of the condition specified in clause (ii) of Section 5 ; or (C) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent; or (D) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. (2) Notwithstanding anything contained in subsection (1), no petition for annulling a marriage - (A) on the ground specified in clause (c) of sub-section (1), shall be entertained if - (I) the petition presented more than one year after the force ceased to operate or, as the case may be, the fraud had been discovered; or (II) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (B) on the ground specified in clause (d) of subsection (1) shall be entertained unless the Court is satisfied: (I) that the petitioner was at the time of the marriage ignorant of the facts alleged; (II) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (III) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground. " ( 50 ) THE requirements for the applicability of Section 16 (as originally enacted), which protected legitimacy, were that : (I) there was a marriage; (II) the marriage was void under Section 11 or voidable under Section 12; (III) there was a decree annulling such marriage either under Section 11 or under Section 12; (IV) the child was begotten or conceived before the decree was made.