Judgment 1. It is the defendant’s revision petition filed challenging the order passed by the trial Court, which held neither the suit is hit under Section 9 of the Code of Civil Procedure nor the provisions of the Hindu Succession Act. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. 3. O.S.No.167/2008 is filed by Anusuya W/o. Ningappa aged 45 years, against Laxmibai wife of Ningappa who was aged 60 years, on the date of the suit. The plaintiffs case was that Ningappa married Laxmibai, she was his first wife. As he did not have any children through Laxmibai, he married Anasuya, through her also he had no children. In other words, defendant is the first wife plaintiff is the second wife of Ningappa. 4. Ningappa died on 06.11.2007 intestate, issueless therefore, she filed the suit for partition and separate possession of her half share in the suit schedule properties. Which are more particularly described in paragraph No.2 of the plaint on the ground that both the widows have inherited his estate equally. 5. After service of summons, the defendant filed her written statement. She contended that age of the plaintiff is shown as 45 years. She contended that age of the plaintiff is shown as 45 years. It means that the plaintiff is born after 1956, Hindu Succession Act. Therefore, the second wife cannot claim any property of the deceased Ningappa. Therefore suit is barred by Hindu Succession Act and as we as Section 9 of CPC therefore the question of effecting a partition would not arise. 6. The trial Court framed the following issues: 1. Whether the plaintiff is entitled t half share in the suit property? 2. Whether the suit is hit by Section 9 of CPC and the provisions of Hindu Succession Act as contended in para 2 of the written statement? 3. Whether the defendant is entitled for compensatory cost of ’10,000/-from the plaintiff? 4. To what decree or order? 7. Issue No.2 dealing with the maintainability of the suit was treated as preliminary issue and both the counsel appearing for the parties were heard on preliminary issue. 8. 3. Whether the defendant is entitled for compensatory cost of ’10,000/-from the plaintiff? 4. To what decree or order? 7. Issue No.2 dealing with the maintainability of the suit was treated as preliminary issue and both the counsel appearing for the parties were heard on preliminary issue. 8. The trial Court held Section 10 (1) of the Hindu Succession Act, 1956 categorically contemplates that the widow and if there are more widows than one, then all the widows together take one share in accordance with the rules enshrined in the Hindu Succession Act. Therefore, he was of the view that the suit is maintainable and plaintiff is entitled to her share in the suit schedule properties in terms of the Hindu Succession Act. Aggrieved by the said order passed by the trial Court, the defendant has preferred this revision petition. 9. The learned counsel for the petitioner Sri. Harshavarthan R. Malipatil, assailing the impugned order contends no doubt under Rule 1 of Section 10 of the Act, it is stated if there are more widows than one then all the windows together would be entitled to one share. In other words, on the day the Succession Act cannot into force, if there are two wives, if the husband dies, both the widows would take one share. The said provision had no application to a person claiming to be the second wife, after coming into force of the Act, becoming widow. Therefore, he submits the averments in the plaint do not show any cause of action for filing the suit for partition and therefore, the suit is liable to be dismissed. 10. Per contra, the learned counsel for the respondent Sri. Ashok S. Kinagi supported the impugned order. 11. In the light of the aforesaid facts and the rival contentions, the point that arises for consideration in this revision petition is as under: Whether the second wife, whose marriage is hit by Section 5 of the Hindu Marriage Act, which a declared as void under Section 11 of the Act could be a widow under section 10 of the Act? 12. Under the Hindu Law, marriage is a Samskara and not a contract. Hindu law recognized eight forms of marriage. However, legislation of laws relating to Hindu Marriage began on the year 1829 and it has been amended and new law enacted from time to time. 12. Under the Hindu Law, marriage is a Samskara and not a contract. Hindu law recognized eight forms of marriage. However, legislation of laws relating to Hindu Marriage began on the year 1829 and it has been amended and new law enacted from time to time. After the independence, the Hindu Marriage Act, 1955 (Act No.25 of 1955) came to be enacted by the parliament amending the law relating to Hindu Marriage among the Hindus. Prior to the enactment of the Act, there was no prohibition for bigamy. On the contrary Hindu Law recognized the bigamy. For the fist time with the passing of the said Act, bigamy was prohibited by law. Section 5 of the Hindu Marriage Act, 1955 prescribes conditions for a valid Hindu Marriage. It reads as under:- 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 a 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. (iii) the bridegroom has completed the age of (twenty one years) and the bride, the age of (eighteen years) 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 a marriage between the two; (v) the parties are not sapindas of each others, unless the custom or usage governing each of them permits of a marriage between the two.” 13. Section 11 of the Hindu Marriage Act reads as under: 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 conditions specified in clauses (i), (iv) and (v) of Section 5. 14. Section 17 of the Act reads as under: “17. 14. Section 17 of the Act reads as under: “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 (45 of 1860), shall apply accordingly.” 15. Section 494 and 495 of the Indian Penal Code reads as under: “494. Marrying again during lifetime of husband or wife.-Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception.—This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.” 495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.-Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 16. A reading of the aforesaid provisions makes it clear that after the passing of the Hindu Marriage Act, 1955, one of the conditions for Hindu Marriage is, neither party should have a spouse living at the time of the marriage. If the said condition is not fulfilled, there is no marriage in the eye of law. It is a mandatory requirement under clause (1) of Section 5 of the Act. If the said condition is not fulfilled, there is no marriage in the eye of law. It is a mandatory requirement under clause (1) of Section 5 of the Act. Such a marriage shall be null and void as is clear from Section 11 of the Act. If on the date of the marriage either party had a husband or wife living, it constitutes an offence under section 494 and 495 of the Indian Penal Code. Such an offence is punishable with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. If the marriage is contracted by concealing the earlier marriage, then the offence is punishable with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. Therefore, after the commencement of the Marriage Act, under no circumstances, bigamy would be recognized or tolerated and on the contrary it is an offence and punishable. However, Section 16 of the Hindu Marriage Act, which was substituted by Act 68 of 1976 declared that notwithstanding that the marriage is null and void under Section 11, any child of such marriage who would have been legitimate, if 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. The children born out of such wedlock have no role to play in the commission of this offence. They are protected by treating them as legitimate children, for the purpose of inhering the property of the parents. It is in this background we have to appreciate the provisions of Hindu Succession Act, which was enacted one year thereafter. 17. The Hindu Succession Act, 1956 for short hereinafter referred to “the Act” was also enacted to amend and codify the law relating to intestate succession among the Hindus. Section 5 and 6 of the Act dealt with the instances where the Act is not applicable, in a other matters, the Act has an overriding effect. In the Act, the word ‘heir’ has been defined under Section 3 (f). Section 5 and 6 of the Act dealt with the instances where the Act is not applicable, in a other matters, the Act has an overriding effect. In the Act, the word ‘heir’ has been defined under Section 3 (f). It means any person, male or female, who is entitled to succeed to the property of an interstate under this Act. Section 8 deals with general rules of succession in the case of males. ‘It provides, the property of a male Hindu dying intestate shall devolve according to the provisions of this chapter. Firstly, upon the heirs, being the relatives specified in Class-I of the schedule. If there are no heir of Class-I, then upon the heirs, being the relatives specified in Class-II of the schedule. If there are no heir of any of the two classes, then upon the agnates of the deceased and if there are no agnates, then upon the cognates of the deceased. Section 10 deals with the distribution of property among heirs in Class-I of the schedule. It reads as under: “10. Distribution of property among heirs in class 1 of the schedule.-The property of an intestate shall be dived among the heirs in class 1 of the Schedule in accordance with the following rules:- Rule-1. The intestate’s widow, or if there are more widows that one, all the widows together, shall take one share. Rule-2. The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3. The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share. Rule-4 The distribution of the share referred to in Rule 3 (i) among the heirs of the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters gets equal portions; and the branch of this predeceased sons gets same portion; (ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.” 18. Rule 1 of the aforesaid provision makes it clear that if a Hindu male dying intestate, his estate will devolve on his widows. If there are more widows than one, all the widows together, shall take one share. Rule 1 of the aforesaid provision makes it clear that if a Hindu male dying intestate, his estate will devolve on his widows. If there are more widows than one, all the widows together, shall take one share. In other words his other heirs i.e., sons and daughters and the mother of the intestate shall each take one share. In the case of widows more than one, all of them put together, would take one share. 19. There is no confusion or ambiguity in the provision. The confusion, which is evident from the judgment of the trial Court is the widow referred to in Section 10 also includes a widow out of a void marriage i.e., second wife out of a second marriage is a widow after the death of her husband vis-à-vis the widow, the first wife out of the first marriage. As set out earlier, this Act came to be enacted subsequent to the enactment of Hindu Marriage Act. The Hindu Marriage Act exclusively deals with the law relating to the marriages. Succession Act deals with the right to the property. Therefore, in the absence of any express words in the Succession Act, the relationship of husband and wife, the concept of marriage, legitimate and illegitimate children born out of such marriage, voidness of marriage have to be gathered from the provisions of the Hindu Marriage Act. Therefore, when Class-I heir includes a widow, it means a woman whose husband is dead and who has not married again, wife means a woman married to a man. Without a marriage there cannot be a widow. That marriage should be a valid marriage under law. Therefore, word widow mentioned among Class-I heirs is a lady who was validity married under the provisions of the Hindu Marriage Act and who has acquired the status of a widow by virtue of the death of her husband. If her marriage with a person is not valid, is void under Class-I of the schedule of the Hindu Succession Act, 1956. The reason why Rule I of Section 10 refers to “if there are more widows than one, all the widows together shall take one share”, is when the Hindu succession Act came into force, as there was no prohibition for Hindu marrying more than one wife, it is possible that a male had married and was having more than one wife. After coming into force of the Act, the Hindu male dies leaving behind two wives whose marriage was valid before coming into operation of the Act, it was provided that those wives will take one share of her husband’s estate under Section 8 of the Act. Under the Hindu Marriage Act, the parliament declared that if a person who marries during the subsistence of an earlier marriage i.e., a person who marries while he has spouse living at the time of the marriage and such marriage is solemnized after the commencement of this Act, it shall be null and void and provisions of Section 494 and 495 of the Indian Penal Code applies to such marriage and is punishable under the Hindu Marriage Act. Certainly the parliament had no intention of conferring any right on the wife who is a party to the offence of bigamy and gave her a share in the property of her deceased husband. Any such interpretation to the provisions of the Hindu Succession Act would nullify the object with which the Hindu Marriage Act was enacted. In other words, it runs counter to the concept of the bigamy being punishable and the marriage being void, which the parliament wanted to eradicate by legislation. 20. In spite of a binding judgment of the High Court being pointed out, the learned trial Judge firstly without properly understanding the scheme of the Act, both the Marriage Act and Succession Act has tried to distinguish the judgment on the ground that in the said judgment Section 10 has not been discussed. It is to be pointed out that a trial Judge on whom the judgment of this Court is binding cannot so lightly ignore the binding judgment of this Court on the ground that particular statutory provision is not noticed. No such power is conferred on the trial Judge. It would result in uncertainty and take away the value of binding decision of this Court. The approach of the trial Court is wholly unsatisfactory and it shows total disregard of statutory provisions as well as the judgment of the High Curt and rule of law. 21. In the light of the aforesaid discussion, it is clear from the averments in the plaint, if the plaintiff was aged 45 years in 2008, she was born in 1963 therefore, she was married only after 1955 Act came into force. 21. In the light of the aforesaid discussion, it is clear from the averments in the plaint, if the plaintiff was aged 45 years in 2008, she was born in 1963 therefore, she was married only after 1955 Act came into force. Admittedly, the defendant was married earlier to her. Therefore, the plaintiff is the second wife. Her marriage with deceased Ningappa was null and void. She did not get the status of a wife. Therefore, she did not get the status of a widow so as to get the benefit under Section 10 of the Act. On the basis of the averments in the plaint itself, the plaintiff has no right to seek partition and separate possession of her alleged half share against the second wife. She is not “heir” under the Hindu Succession Act. 22. For the aforesaid reasons, the judgment of the trial Court is perverse, contrary to law and therefore it is liable to be set aside. Accordingly, it is set aside. Hence I pass the following order: (a) The revision petition is allowed. (b) The impugned order is hereby set aside. (c) The suit of the plaintiff is dismissed, as the averments in the plaint do not disclose the cause of action. Plaint is rejected. (d) No costs.