JUDGMENT
K.C. Agrawal, J.
1. Dissenting with a decision reported in Smt. Sheelwati v. Smt. Ram Nandani (AIR 1981 All 42), Hon’ble B. N. Sapru, J. has referred the following question:
“Whether the view taken in Smt. Sheelwati v. Smt. Ram Nandani (AIR 1981 Allahabad 42) is correct in so far as it lays down that the validity of a void marriage being in contravention of the provisions of Setcion 5 (i) read with Section 11 of the Hindu Marriage Act cannot be gone into at the instance of a third aggrieved party after the death of the spouses to the marriage.”
2. The relevant facts which led to the above reference have been noted by the learned Judge in his judgment. It appears that Smt. Ram Pyari, the appellant, moved an application for grant of a succession certificate before the District Judge, Kumaun to the assets of her husband Tula Ram. It was alleged that the applicant Smt Ram Pyari was married to Tula Ram and that he having died without leaving any issue, she was entitled to the succession certificate.
3. The objectors, who were kith and kin of Tula Ram, pleaded that Smt. Ram Pyari was not the legally wedded wife
of Tula Ram and she was not entitled to the grant of the succession certificate. The learned District Judge rejected the application on April 10, 1973, Against that judgment the present appeal was filed.
4. Challenging the judgment of the learned District Judge, the appellant’s learned counsel argued that in the proceeding for the grant of a succession certificate consequent on the death of Tula Ram, the validity of marriage of Tula Ram with Smt. Ram Pyari could not be questioned. The submission was that a marriage on the ground of breach of Section 5(i) of the Hindu Marriage Act can be set aside only at the instance of one of the spouses and if no application for declaration of the marriage is made by either of the spouses, the marriage becomes immune from challenge. For this submission reliance had been placed on the decision of Smt. Sheelwati v. Smt. Ram Nandani (AIR 1981 All 42) (supra) in which the learned Judge held that no third person can treat the marriage to be void and as such it cannot be so adjudicated in any suit or proceeding. Hon’ble B. N, Sapru, J., held doubtful about the correctness of the view taken in this case.
5. A brief re’sume’ of the relevant provisions of the Hindu Marriage Act would show that Section 5(i) lays down that the marriage may be solemnized between any two Hindus, if neither party has a spouse at the time of the marriage. This section had been introduced by the Parliament with a view to prohibit bigamy. Before enactment of the Hindu Marriage Act there was no such prohibition in the pure Hindu Law. Section 11 of the Act provides that a marriage between any two Hindus, if it contravenes the conditions specified in Clauses (i), (iv) and (v) of Section 5 and if it is solemnized after the commencement of the Act, the same shall be null and void.
Section 12 of the Hindu Marriage Act deals with voidable marriages whether solemnized before or after the commencement of this Act. It provides that a voidable marriage may be annulled by a decree of nullity on any of the grounds mentioned in this provision. What is Important at this place to note is that a voidable marriage can be annulled by a decree of nullity only when an application to that effect is moved under the Act by one of the parties to the marriage.
Section 27 further provides that any marriage between two Hindus solemnized after the commencement of the 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 Penal Code shall apply accordingly. In other words, this section imposes punishment for the offence of bigamy. Section 19 deals with the Court to which petitions contemplated by Hindu Marriage Act can be moved.
6. Section 11 of the Hindu Marriage Act was amended in 1976 on the recommendation of the Law Commission. By this amendment the Parliament has put an end to the controversy with a petition seeking a decree for nullity of marriage could only be filed during the lifetime of the spouse or even after his/ her death. By inserting the words ‘against the other party’ in Section 11 it has been made apparent that a petition for decree cf nullity of a marriage may be presented only during the lifetime of the spouse.
7. Under Section 11 of the Act any marriage solemnized after the commence-ment of the Hindu Marriage Act can be declared null and void on a petition presented by either party thereto against the other party. The argument of the learned counsel for the appellant was that as Section 11 is exhaustive, the right to get the marriage performed against Section 5 Clauses (i), (iv) and (v) is limited to the parties to a marriage and that a third person cannot bring any suit for its declaration as a nullity. There is no doubt that the phrase ‘either party thereto’ can only mean to person, name-ly, the actual parties to the marriage and no third party. According to the language of this section even the first wife cannot apply under Section 11 for declaration of the second marriage as void but there is nothing in Section 11 or in any provisions of the Hindu Marriage Act which debars a person affected by the illegal marriage performed in contravention of Clauses (i), (iv) and (v) of Section 5 to file a suit in the Civil Court for its declaration as void. There is a presumption against exclusion of jurisdiction and it cannot be easily inferred. There is inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may at one’s peril bring a suit of one’s choice. A suit for its maintainability requires no authority in law. It is
enough no statute debars the suit (see Ganga Bai v. Vijai Kumar (AIR 1974 SC 1126). Accordingly not only the first wife but also anyone who is affected by the marriage performed in contravention of Clauses (i), (iv) and (v) of Section 5 of Hindu Marriage Act would be entitled to bring the civil suit.
8. The controversy about maintainability of a civil suit at the instance of a third person in a Civil Court has been considered by this Court and others. The decision of this Court is reported in Dr. Jokhan Prasad Shukla v. Laxmi Devi (1974 All LJ 130). It was hold in this case that a suit filed by the first wife for declaration of the marriage between her husband with another lady to be null and void is not covered by the provisions of Section 11 of the Act and, therefore, she has the ordinary remedy under the civil law of filing a suit for declaration of the second marriage to be void. In Har Mohan v. Kamla Kumari (AIR 1979 Orissa 51) the suit filed by the first wife for declaration of the marriage of her husband with another woman was held to be maintainable. In T. Rangaswami v. T. Aravindammal (AIR 1957 Mad 243). Ramaswami J. (as he then was) observed:
“Whereas…..in the case of a voidable marriage it can be annulled only on presentation of a petition by either party thereto, a marriage which is null and void may be declared to be so even at the instance of a stranger whose interest is affected by such marriage.”
9. In AIR 1963 Patna 311, it was held that it was clear from the scheme of the Hindu Marriage Act that a party to the marriage in respect of which no decree for nullity could be granted under the Hindu Marriage Act, could seek his remedy under the general law. To the same effect is the view taken in Shan-karappa v. Basamma (AIR 1964 Mys 247).
10. There are few other cases on this controversy but as no useful purpose could be served by multiplying the number, we do not consider it necessary to refer them.
11. At this place it appears relevant to refer to the distinction between a void and voidable marriage. We have noted above that Section 12 of the Hindu Marriage Act deals with the cases where a marriage is void at the option of either party thereto. Its object is to lay down that until avoided, a voidable marriage
should be regarded as good for all purposes. It also lays down the circumstances under which a marriage shall be held to be voidable and annulled by a decree of nullity. Sections 11 and 17 deal with void marriages. Under section 17 a person committing breach of Clauses (i), (iv) and (v) of Section 5 after the commencement of the Hindu Marriage Act is liable to be punished under Sections 494 and 495 of the Penal Code. It is true that the two sections deal with and lay down that the marriages performed in contravention of the clauses referred to above would be void but it will be a folly to think that the legislature has enacted two provisions for the same purpose. Section 11 simply declares a marriage to be void whereas Section 17 makes a party contravening Clauses (i), (iv) and (v) of Section 5 liable to punishment. These two sections, however, cannot be read as confining the rights only of the parties to a void marriage, There is a distinction between a void and voidable marriage. A void marriage is one which is regarded as non-existent or as never having taken place. It could be so treated by both the parties to it without the existence of any decree annulling the said marriage.
A marriage is void where there is bigamy, consanguinity or within the degrees of prohibited relationship. In these cases the Court will regard the marriage as never having taken place and no status of matrimony as ever having been conferred. Consequently, the parties never having been husband and wife, either is competent to be called against the other. Consent of the parties performing the marriage in breach of Clause (i) of Section 5 cannot validate it. Such is not the position in case of a voidable marriage. A voidable marriage is regarded as valid and subsisting unless a competent Court annuls it. Until the decree of nullity is obtained in accordance with Hindu Marriage Act. the lie remains binding. So long as there is no decree they will live and die as married persons with all the incidents that attach to that estate. The expression ‘void means null, ineffectual having no force or binding effect. Since a marriage performed in contravention of Clauses (i), (iv) and (v) of Section 5 is void, it is incapable of being cured or ratified.
12. Precisely for the above reason that it has been recognised by the Courts that a third party can bring a suit in a
Civil Court for its annulment even after their deaths. If this is not held the rights of the third party would be seriously prejudiced without having any right in them to seek redress in a Court of law. The case of a voidable marriage as stated above, stands on a differed footing. The right given to annulment of marriage is confined to the parties.
13. In Twenty v. Twenty (1946) 1 All ER 564, it has been held:
“Where the marriage is void ab initio, any person who has got any interest in the matter can challenge the marriage by filing a regular civil suit for the declaration that the marriage is a nullity. Such a marriage is no marriage at all and any spouse can ignore such a marriage”.
14. In R. v. Algar (1953) 2 All ER 1381, a distinction between a void and voidable marriage has been brought about and it has been laid down that a void marriage has no existence in the eye of law. Our view, therefore, is that where a marriage is a bigamous marriage, the marriage is regarded as null and void from the very beginning. The Law Commission while considering the question of amending Section 11 observed:
“The Hindu Marriage Act is a piece of matrimonial law and decrees of nullity, contemplated by it, are decrees passed by matrimonial Courts. It is fundamental that matrimonial Courts have concern only with the marital rights of the parties to marriage (and incidentally with the rights of the children) but with nothing, else. A petition for a decree of nullity in respect of a void or a voidable marriage can be made only by either the husband or the wife. It would not be appropriate to provide that a petition for the purpose can be made by a stranger to the marriage. A third party (for example, a person interested in the estate of either the husband or the wife) can certainly question the validity of their marriage in a civil suit and obtain a finding, or he may even bring a suit for a declaration that the marriage was void. But such a decree made by a civil court will not be a decree of nullity, as contemplated by matrimonial law.”
15. The above report would show that a third person has a right of bringing the suit.
16. Apart from a civil suit the question of validity of second marriage when
raised in other proceedings was examined and adjudicated upon. In Naurang Singh v. Sapla Devi (AIR 1968 All 412) the claim for maintenance made by the second wife was rejected on the ground that her marriage was void on account of Sections 5(i) and 11 of the Hindu Marriage Act In Mohd. Iqrum Hussain v. State of U. P. (AIR 1964 SC 1625) the Supreme Court observed :
“Under sections 5 and 11 of Hindu Marriage Act (Act No. XXV of 1955) a second marriage with a previous married wife living is null and void”.
17. The claim for maintenance made by the second wife was also rejected on the ground of her marriage being a nullity in Banshidhar Jha v. Chhabi Chatterji (AIR 1967 Patna 277). In (Bajirao Raghoba Tambare v. Tolanbar. 1980 Cri LJ 473) the Bombay High Court took a similar view. The Allahabad High Court in Ishwar Singh v. Hukan Kaur (AIR 1965 All 464) held that the second marriage during the lifetime of the previous wife was since invalid the second wife was not entitled to maintenance.
18. In Ram Kripal v. Stale of U, R (1980 All WC 369) and Phool Chandra v. State of U. P. (1978 All LR 198) : (AIR 1978 NOC 143) the view taken was that the second marriages when the first wives were alive, were invalid and conferred no right on them to get land allotted under the U. P. Imposition of Ceiling on Land Holdings Act to themselves.
19. The learned counsel for the appellant has referred to some of the decisions for the submission that the jurisdiction of the Civil Court to entertain the suit was barred. These decisions are reported in Premier Automobiles Ltd. v. K. S. Wadke (AIR 1975 SC 2238) Bata Shoe Company Ltd. v. Jabalpur Corporation (AIR 1977 SC 955) and S.C. Mud-dada Chayanna v. Karnam Narayana (AIR 1979 SC 1320). All of those decisions are inapplicable. Each one of the Act which the Supreme Court was called upon to deal within those cases created a bar to the jurisdiction of Civil Courts. These cases are of no assistance for deciding the controversy involved.
20. For what we have said above we do not agree with the law laid down in Sheelwati v. Smt. Ram Nandani (AIR 1981 All 42). We answer the question by saying that the validity of a void marriage being in contravention of the
provisions of Section 5(i) rend with Section 11 of the Hindu Marriage Act can be gone into at the instance of a third aggrieved party even after the death of one of the spouses to the marriage.
21. Let the papers of this appeal be returned to the learned single Judge with the answer noted above.
