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TMI Blog1996 (4) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... an Kalliani Amma (appellant No. l), 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 9th January, 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 calamity to befall the children for settling the question of inheritance. 3. The litigation started 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 appellant Nos. 2 to 6 and their mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that if the benefit 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 invalid marriages prior to the Act and 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 provisions 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 the parties I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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 Sahityacharya Shri Pandit Rameshwar Dwivedi. They are as under:- The bridegroom 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 king's court and to your father's house. The bride says Perform along with me the Bajpeya, Ashwamedha and Rajsuya Yagas,tuladan and marriage. With my consent and long with me consecrate Beoli,well and tank etc.,and God's 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, and perform a marriage and engage in framing and commerce after obtaining my consent and along with me. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atha 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 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. Manu 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, vide, manu (IX, 80-81). He further maintains that (1) the first wife is married from a sense of duty and (2) the others are regarded as married from sexual motives, vide, Manu (III, 12-13). Supersession has been explained in Mitakshara 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 of her rights such as association in performance of religious rites, religious duties, adoption, etc. In Ranjit Las V. Bijoy Krishna, it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a second marriage and rejected it altogether. The touch of religion in all marriages 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 AIR 1965 SC 1564 observed:- Apart from these considerations, there is nothing in the Hindu Law, as applicable to marriages 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 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 intervenes to discipline behaviour. Various states, therefore, passed their separate, though almost similar, laws relating to marriages 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 of after the date, on which this Act comes into force shall be void. (2) On of after the said date, any marriage contracted by a male with a marumuakkattayi 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. 24. The Marumakkattayam Act, 1932 was repealed by Section 7(2) (read with the schedule) of the Kerala joint Hindu Family system (Abolition) 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained in the Kerala Interpretation and General Clauses Act which, therefore, will apply with full vigor on the principle that whenever there is a repeal of any enactment, the consequences 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 a 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 case of repeal simplicitor. In view of Section 4(b) of the Kerala interpretation and General Clauses Act, the previous operation of Madras Act XXII of 1933 will not be affected by the repeal nor will the repeal affect any thing 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. 32. Raman had contracted a second marriage, in the lifetime of his first wife, in 1948 when madras Act XXII OF 1933 was in force, which prohibited a second marriage and, therefore, the consequences indicated in the Act that such a marriage would be vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 marumakkattyi 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 Nomboodri Act (No.XXI of 1933) which was applicable to Namboodri Bragmans not governed by Marumakkattayam law of inheritance. This Act also prohibited bigamy but it was only partial prohibition as it was provided by Sections 11 and 12 of the Act as under: 11. No Nombudri 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. (2) Any person who conducts, directs or abets t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that having regard to the outlook of the Hindus, it may have been considered necessary to impose severer penalties in order to implement the law effectively. 41. The Madras High Court in Srinivasa lyer Vs. 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 Mahammedans on the ground of religion. 42. The Full Bench of the Andhra Pradesh High Court in G. Sambireddy vs. G. Jayamma AIR 1972 A.P., considered both the Bombay and madras decisions referred to above and held that sections 11 and 17 of the Hindu Marriage Act, 1955 did not violate Article 15(1) as sections 5(1), 11 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 India 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 be deemed to be their legitimate child not with standing 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 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. 51. A marriage would be null and void if it was solemnized in contravention of clauses (i),(iv) and (v) of Section 5. clause (i) prohibits a marriage if either party has a spouse living at the time af marriage. Clause (iv) prohibits a marriage if the parties are not within the degrees of prohibited relationship while clause (v) prohibits a marriage between parties who are the 'sapindas' of each other. A marriage it any of the above situations was liable to be declared null ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mate than a meaning which expresses the concept of entitlement or recognition by law. 55. Illegitimate children, on the contrary, are children as are not born either in lawful wedlock, or within a competent time after its determination. It is on account of marriage, valid or void, that children are classified as legitimate or illegitimate. That is to say, the social status of children is determined by the act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents commit a folly, as a result of which a child is conceived, such child who comes into existence as an innocent human baby is labelled as illegitimate. Realising this situation, our parliament, and we must appreciate the wisdom of the legislators then adorning the seats in the august hall, made a law which protected the legitimacy of such innocent children. This was a bold, courageous and dynamic legislation which was adopted by other advanced countries. 56. The concept of illegitimacy was abolished in New Zealand by the status of Children Act 1969 (NZ). Under s.3 of this Act, for all purposes of the law of New Zealand, the relationship between every person and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re. 61. The defect in the language employed in Section 16 was noticed by some High Courts also. The Madras high Court in T. Ramayammal vs. T.Mathummal AIR 1974 (Madras) 321, which was a decision rendered prior to the amendment of section 16, laid down that unless a decree of nullity was granted in respect of a marriage which was void, the legitimacy of the children born of such carriage would not be protected. The High Court further observed as under: The wording of Section 16 so far as it is relevant to a marriage void under Section 11 leads to an anomalous and startling position which could have hardly been contemplated by the legislature. The position and status of children of void marriage should obviously be the same either the marriage is declared a nullity under Section 11 or otherwise. It is seen that the legislature has borrowed in this section the language of section 9 of the Matrimonial Causes Act, 1950 which deals with the legitimacy of children of only voidable marriages and does not refer to children of marriages void ipso jure and made the section applicable to cases of both voidable and void marriages annulled by a decree of court. Though the language of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 at the date of the decree it had been dissolved instead of being annulled, shall be deemed to their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub- section (1) or sub-section (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 Section 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. 66. The question now to be considered is the question relating to the 'vires' of the Section its present from, or, to put it differently, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (CA), Wherein Lindly, M.R observed that the rule was as necessary now as it was when Lord Coke reported Heydon's case . This rule was also followed by the Earl of Halsbury in Eastman Photographic Material Company Ltd. vs. Comptroller General of Patents, Designs and Trade- Marks (1898) AC 571, 576 (HL) in the following words:- My Lords, it appears to me that to construe the statute now in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the format Act had given rise, and to the latter Act which provided the remedy. These thee things being compared, I cannot doubt the conclusion. 71. Heydon's case has also been followed by this Court in a number of decisions, all of which need not be specified here except K.P. Verghese vs. Income-tax Officer, Ernakulam and Anr. 131 ITR 597 = 1982 (1) SCR 629 = 1981(4) SCC 173; Bengal Immunity Co. Ltd. vs. state of Bihar AIR 1955 SC 661 and m/s Goodyear India Ltd. vs state of Haryana AIR 1990 SC 781. Heydon's Rule is generally invoked where the words in the statute are ambiguous and /or are capable of two meanings. In such a situation, the meaning wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operation of that the provision indicated in the non obstante clause will not be an impediment for the operation of the enactment. (See: Union of India vs. G. M. Kokil (1984) (Supp.) SCC 196 = AIR 1984 SC 1022; Chandavarkar Sita Ratna Rao vs. Ashalata S. Gurnam (1986) (4) SCC 447(477) R.S Raghunath vs. state of Karnataka (1992) 1 SCC 335; G.P. Singh's Principles of statutory Interpretation). 76. The words notwithstanding that a marriage is null and void under section 11 employed in Section 16(1) indicate undoubtedly the following :- (a) Section 16 (1) stands delinked from Section 11. (b) Provisions of Section 16(1) which intend to confer legitimacy on children born of void marriages will operate with full vigor in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened. (c) Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16(1) was amended. (d) Mischief or the vice which was the basis of unconstitutionality of unamended section 16 has been effectively removed by amendment. (e) Section 16(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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