Eravathkanapravan Kalliani Amma & Ors Vs. K. Devi & Ors  INSC 621
(26 April 1996)
Saghir S. (J) Ahmad Saghir S. (J) Kuldip Singh (J) S. Saghir Ahmad, J.
1996 AIR 1963 1996 SCC (4) 76 JT 1996 (4) 656 1996 SCALE (4)131
million million spermatozoa All of them alive :
their cataclysm but one poor Noah Dare hope to survive.
among that billion minus one Might have chanced to be Shakespeare, another Newton, a new Donne But the one was me
"So said Aldous Huxley, perhaps, in desperation and despondency. And, that
is how a person would feel on being bastardized by a court verdict. disentitling
him from inheriting the properties left by his father. This is the theme of the
present judgement which we are required to write in view of the following facts
Kanhirakunnath Kurungodan Raman Nair 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 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.
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.
Respondents had instituted the suits on the basis of their title, with the
allegations that the appellant 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 & C to the plaint, on the ground that they being
the legal heirs of Raman Nair were entitled to a share in the properties left
by him along with the respondents.
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 a 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 properties
left by Raman Nair.
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 littled 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 her children. Hence these appeals.
P. S . Poti, Sr. Advocate. appearing on behalf of the appellants. has contended
that the trial court as also the High Court were in error in dismissing the
suit of the appellants for partition of their share in the properly 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, any 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.
contention of the learned counsel for the respondents, on the contrary, is that
benefit of Section 16 can be given only to such marriages 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 ll
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.
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.
Marriage, according to Hindu Law, is a holy union. It is not a contract but a Sanskara
The religious rites solemnizing a marriage include certain vows and prayers by
the parties "In the three mantras of Laja (parched paddy) Hawan, the bride
says :- "I give oblation to the Fire God, the destroyer of enemies.
the grace of the said destroyer of enemies, may I never be separated from my
unmarried girls have worshipped the Fire God, the sustainer of the earth, for
the fulfillment of their desire.
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 husband's house.
worship Shankar in the form 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 freed from death as the ripe melon is freed from its knot in the
creeper. With His grace may I never be separated from my husband's house.
this oblation be acceptable to the Fire God. May sacred fire separate me from
this (my father's) house but never from my husband's.
husband live long and my kinsmen be prosperous. May this oblation be acceptable
to the Fire God.
this parched paddy in fire. May it make you (the husband) and me prosperous.
The boon be granted by agni." Similarly, bridgroom, says to the bride:-
"O bride ! trace your first step, by this may our foodstuffs increase. May
God let me keep your company till I live.
! trace your second step. by this may our strength grow, may God let me keep
your company till I live.
! trace your third step, by this may our wealth increase. May God let me keep
your company till I live.
! trace your fourth step, by this may our comforts and pleasures increase. May
God let me keep your company till I live.
! trace your fifth step. May our progeny increase. May God let me keep your
company till I live.
! 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.
! 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."
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.
The terms prescribed by the Dharam 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.
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.
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.
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.
unto my hands what you earn by the grace of God whether it be hundred, a
thousand, a hundred thousand, a thousand million, and ten billion.
obtaining may consent purchase, sell or exchange a cow, a bull or a buffalo, a
goat, an elephant a horse or camel.
Lord, you should be my friend in the same way as Krishna is of Arjun, Brahaspati is of Indra and as Swati is of Chatak."
Once "Saptapadi" is completed the marriage tie becomes unbreakable.
The legal position of a second marriage under the original Hindu Law is
described in 'Principles of Hindu law' by Jogendra Chunder Ghose, 1903 Edition,
was not allowable according to the spirit of the law, but it was very generally
practised, though the second wife could not be associated in religious
sacrifices, and was styled a wife not for duty but for lust."
Sir Gooroodas Banerjee in his book Hindu Law of Marriage and Stridhana, 4th
Edition (re-Printed in India in 1984)" lays down as under :
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 sensual 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 supersession of the wife and re-marriage during her lifetime, are
barrenness, ill- health, ill-temper, and misconduct of the wife.
should be observed that supersession (which is adhivedana in sanskrit) here
means, as explained in the Mitakshara and the Subodhini, merely the contracting
of a second marriage while the first wife lives; and it does not imply that the
first wife is actually forsaken, or that her place is taken by the second, in
respect of any matter except perhaps the husband's 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. This view is further confirmed by the rules
regarding precedence among wives, which is settled by law with a view to
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.
ill-temper and misconduct of the wife, vide, manu (IX, 80-81).
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,
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 been held that adoption by a senior widow though lat in time is
valid notwithstanding an earlier adoption by a junior widow without the consent
of the senior widow whose adoption was declared to go invalid, though both wire
authorized to adopt by the deceased. The Rishis do not approve of unrestricted polyagamy.
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 hatred to her lord, who is incurably
disease 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
8th year; she who brings forth still born children or whose children all
infants die in the tenth; she who brings forth only daughters, in the eleventh
and she who speaks unkindly, without delay," It is, therefore, incorrect
of 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 woman united by marriage, constantly
beware, lest 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
prevalent at the time by 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 a second wife in the
lifetime of the first, only in certain contingencies when there was a failure
of the object of marriage.
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 a total failure of the
object of marriage. Monogamy was the Rule and Ethos of the Hindu society which
derided 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."
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.
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.
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 recognized customs and usages, which
prevailed among a considerable section of the people inhabiting the West Coast
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 Tarwad, 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 recognized as an authoritative word by the Privy Court had also
had an occasion to refer to broad aspects of this law in a few decision (see : Balakrishna
Menon vs. Asstt. Controller of Estate Duty AIR 1971 SC 2390; Venugopala Ravi Varma
vs. Union of India AIR 1969 SC 1094; Achuttan Nair vs. C. Amma AIR 1966 SC
411). In A recent decision in Padmavathy Amma vs. Ammunni Panicket AIR 1995 SC
2154 = 1995 (Supp.) 3 SCC 352, it was indicated that:
the Marumakkathayam system of law succession to property is traced through
females, though the expression Marumakkathayam strictly means inheritance by
sister's children. It is because of this that a man's 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, daughter's
daughter and so on. A Marumakkathayam family is known as a Tarwad and consists
of a group of persons, males and females, all tracing descent from a common
ancestress. An ordinary Tarwad consists of the mother, her children, male and female,
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 male
member. The junior male members are also proprietors and have equal rights. The
Tarwad is thus a typical matriarchal family."
law was modified and altered by madras Marumukattayam Act, 1932 (XXII of 1933).
This Act was on force when Raman Nair married his first wife, Ammu Amma, in
1938. Section 5 of the Act provides as under:
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.
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.
thus contained a specific prohibition that during the continuance of a prior
marriage, any marriage contracted by either of the parties thereto shall be
But Heart has its own reasons. In spite of the statutory prohibition, Raman
Nair contracted a second marriage with respondent no.1 in 1948.
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.
Learned counsel for the appellant, therefore, contended that Madras Act XXII 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
Raman's marriage with appellant No.1 would become valid particularly as the
repeal would have the effect of obliterating the Madras Act XXII of 1933 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 here in below.
Section 7 of the Kerala Joint Hindu Family system (Abolition) Act, 1975 (Act
No. 30 of 1976) is reproduced below:
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
immediately before the commencement of this Act shall case to have effect with
respect to any matter for which provision is made in this Act.
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."
the schedule appended to the Act, the Madras Act is mentioned at serial No. 1.
Section 4 of the Kerala Interpretation and General Clauses Act provides, inter alia,
Effect of repeal --Where any Act repeals any enactment hitherto made or
hereafter to be made, then, unless a different intention appears, the repeal
anything not in force or existing at the time at which the repeal takes effect;
the previous operation of any enactment so repealed or anything duly done or
suffered thereunder, or
affect any right, privilege, obligation or liability acquired, privilege,
obligation or liability acquired,accrued or incurred under any enactment so
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.
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 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.
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.
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 void would not be affected nor will the previous operation of
the Act be affected nor will the previous operation of the Act be affected by
the repeal of that Act.
repeal does not mean that Madras Act XXII of 1933 never existed on the statute
Book nor will the repeal have the effect of validating Raman's second marriage,
if it already a void marriage under that Act.
Learned counsel for the appellant then contended that appellant nos. 2 to 6
shall, for purposes of inheritance, be treated 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
discriminator and violative of the rule of equality before law contained in
Article 14 of the Constitution. We shall examine both the contentions.
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 have a peep into the background.
Before the enactment of the Hindu Marriage Act, 1955, there existed general
Hindu Law, based upon scriptures and Shastras, including their exposition by
scholars, which regulated marriages amongst Hindus. There were different
customs and usages prevalent in different parts of the country.
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 prevalent
among different groups of people. Local laws were also made regulating
marriages among people in the Malabar area there was the Madras Marumakkattayam
Act (No. XXII of 1933).
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
(1) During the continuance of a prior marriage which is valid under section 4,
any marriage contracted either or the parties thereto on or after the date on
which this Act comes into force shall be void.
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.
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:
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
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
Thus, a second marriage was permissible under certain circumstances enumerated
in Section 11. It was also indicated that the second marriage would not 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 provide as
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." became operative with full force and vigor.
Since section 9 was to operate subject to the provisions of section 5 of the
Tamil Nadu (Madras) Marumakkattayam Act, 1932, a Namboodari could not, after
deletion of sections 11 and 12, marry a second wife during the lifetime of the
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
Courts, in which the validity of such laws was challenged, particularly after
the enforcement of the Constitution. On the ground of violation Articles 14, 15
and 25, upheld those laws with the finding record in strong terms that the laws
were neither discriminatory nor did they infringe Article 25 of the
) Bocbay 775 = 55 Bombay Law Reporter 779= AIR 1952 Bombay 84, rejected the
argument that the Bombay (Prevention of Hindu Bigamy 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 stages. It was pointed out by the Court that
penalties provided in the Act, which were more stringent than those provide 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 severer penalties in order to implement the law
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.
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.
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
uniform codified law concerning marriages.
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 a 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 of 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.
Other relevant provisions of the Act also be noticed.
Section 4 of the Act provides that the Act shall have an overriding effect. It
provides as under:
Overriding effect of Act-- save as otherwise expressly provide 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 is made in
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."
Conditions for Hindu marriage are indicated in Section 5 which is quoted below:
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;
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 or epilepsy;
bridegroom has completed the age of (twenty one years) and the bride the age of
(eighteen years) at the time of the marriage;
parties are not within the degrees of prohibited relationship, unless the
custom or usage governing each of them permits of a marriage between 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:
Legitimacy of children of void and voidable marriages:
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:
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."
Sections 11 and 12 which are referred to in section 16 above are also quoted
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." "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:
the marriage has not been consummated owing to the impotence of the respondent;
the marriage is in contravention of the condition specified in clause (ii) of
section 5; or
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 Rastraint (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 circumstance
concerning the respondent; or (d) that the respondent was at the time of the
marriage pregnant by some person other than the petitioner.
Notwithstanding anything contained in sub-section (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 had 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 descovered;
the ground specified in clause (d) of sub-section (1) shall be entertained
unless the court is satisfied:
the petitioner was at the time of the marriage ignorant of the facts alleged;
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."
requirements for the applicability of section 16 (as originally enacted), which
protected legitimacy, were that:
was a marriage;
marriage was void under section 11 or voidable under section 12.
was a decree annulling such marriage either under Section 11 or under Section
child was begotten or conceived before the decree was made.
marriage would be null and void if it was solemnized in contravention of
clauses (i),(iv) and (v) of Section 5.
(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 and void by a decree of nullity
at the instance of either party to the marriage. Section 16 was intended to
intervene at that stage to protect the legitimacy of children by providing that
children begotten of conceived before the making of the decree would be treated
to be legitimate and they would inherit the properties of their parents,though
not of other relations.
Similarly, a marriage solemnized either before or after the commencement of the
Hindu Marriage Act, 1955 was made statutorily voidable if it was found that the
husband was impotent at the time of marriage and continued to be so till the
institution of the proceedings or that a party to marriage was either idiot or
a lunatic or that the consent of the party to the marriage or that the of the
guardian required under section 5 of the Act, was obtained by force or fraud ori
that the girl at the time of marriage was pregnant by some other person. In
such a situation, the marriage was label to be annulled by a decree of nullity
at the instance of either party to the marriage. The legitimacy of children of
such a marriage was also protected by Section 16 by providing that for purposes
of inheritance, the children would be treated to be legitimate and would
inherit the properties of their parents.
Now, Legitimacy is a matter of status. In Ampthill Peerage case (1976) 2 All
England Reports 411 (424), HL (Committee for privileges), Lord Simon of Glaisdale
is a status : it is the condition of belonging to a class in society the
members of which are regarded as having been begotten in lawful matrimony by
the men whom the law regards as their fathers.
although also a legal relationship, is based on a fact, being proved demonstrably
by parturition. Fatherhood, by contract, is a presumption. A woman can have
sexual intercourse with a number of men any of whom may be the father of her
child; though it is true that modern serology can sometimes enable the
presumption to be rebutted as regards some of these men. The status of
legitimacy gives the child certain rights both against the man whom the law
regards as his father and generally in society." 54. In an Australian
case, Barwick, CJ in Salemi vs. Minister for Immigration and Ethnic Affairs
(1977) 14 ALR 1(7). stated:
cannot attribute any other meaning in the language of a lawyer to the word
"legitimate" than a meaning which expresses the concept of
entitlement or recognition by law."
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.
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.
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 his father and mother is to be determined irrespective of whether
the father and mother are or have been married to each other, and all other
relationships are to be determined accordingly.
England also, social reforms were introduced to supplement or improve upon the
Matrimonial Clauses Act by enacting Family Law Reform Act, 1969 as also the
Family Law Reform Act, 1987 to give limited right of succession to the
illegitimate children in the property of their parents or allowing the parents
to succeed to the property of their illegitimate children.
spite of the foresightedness of the legislators, the intention of the
parliament could not be fully reflected in the Act which unfortunately suffered
at the hands of persons who drafted the Bill and the various provisions
contained therein. The results were startling. Since the Rule of Legitimacy was
made dependant upon the marriage (void or voidable) being annulled by a decree
of annulment, the children born of such marriage, would continue to be
illegitimate if the decree of annulment was not passed, which, incidentally,
would always be the case, if the parties did not approach the Court. The other
result was that the illegitimate children came to be divided in two groups;
those born of marriage held prior to the Act and those born of marriage after
the Act. There was no distinction between these two groups of illegitimate
children, but they came to suffer hostile legislative discrimination on account
of the language employed therein.
language is an imperfect instrument for the expression of human thought.
The object of Section 16 was to protect legitimacy of children born of void of voidable
marriages. In leaving out one group of illegitimate children from being as
legitimate, there did not appear to be any nexts between the object sought to
be achieved by Section is and the classification made in respect of
illegitimate children similarly situate or circumstanced. The provisions of
Section 16 were, therefore, to that extent, clearly violative of Article 14 of
The legislature, as a matter of fact, committed the mistake of borrowing in
this Section the language of Section 9 of the Matrimonial Clauses Act, 1850
made by the British parliament which dealt with the legitimacy of children of
only voidable marriages did not the children of marriage void ipso jure.
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:
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.
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.
the language of the section is more appropriate to voidable marriages, it has
been applied to void marriages as well, presumably with the object of ensuring
that where a marriage was in fact solemnized but was void for any of the grounds
mentioned in section 11, the children of such marriage should not be
bastardized whether a decree of nullity is passed or not.
the above obvious intention of the Legislature has not been duly carried out by
a proper wording of the section." 62. The High Court was of the opinion
view of the language of the section being plain and unambiguous, it is not
possible for the court to construe the same in a different manner having in
mind the presumed intention of the legislature even if it appears to be
obvious. I am therefore, of the view that this is a casus omissions which the
Courts cannot reach for no canon of construction will permit the court to
supply what is clearly a lacuna in the statute and it is for the legislature to
set right the matter by a suitable amendment of the section."
may also be pointed out at this stage that the Joint Committee which was
constituted to look into the provisions of the Hindu Marriage Act, indicated in
its Report that in no case should children be regarded as illegitimate and
consequently it followed the principles contained in Section 26 of the special
Marriage Act, 1954, to provide that children born of void or voidable marriages
shall be treated to be legitimate unlike the English law which holds the child
of a voidable marriage alone to be legitimate but not that of a void marriage
(see: Section 9 of the Matrimonial Clauses Act, 1850).
order, therefore, to give full effect to what was intended to be achieved by
enacting Section 16 by Act No. LXVIII of 1976 pointing out in the Notes to the
Clauses of the Bill and the Amending Act, 1976 that:
clause seeks to substitute Section 16 so as to clarify the intention and to
remove the difficulties in interpretation."
The Amended Section 16 is quoted below" "16. Legitimacy of children
of void and voidable marriages.-(1) Notwithstanding that a marriage is null and
void under section 11, any child of such marriage who would have been
legitimate if the marriage had been valid, shall be legitimate, whether such
child is born before or after the commencement of the marriage Laws (Amendment)
Act, 1976 (68 of 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.
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.
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
The question now to be considered is the question relating to the 'vires' of
the Section its present from, or, to put it differently, if Section 16, as
originally enacted, contravened, any way, Article 14, for the reason that it
discriminated between two groups of illegitimate children similarly
circumstanced, does the Section, after its amendment by Act No. LXVIII of 1976
continue to be still violative of Article 14.
There is always a presumption that an Act made by the parliament or the state
Legislature is valid; so also there is a strong presumption in favour of the
validity of legislative classification. It is for those who challenge the Act
as constitutional to show and prove beyond all doubts that the legislature
arbitrarily discriminated between different persons similarly circumstanced. this
presumption, however, can be displaced by showing that the discrimination was
so apparent and manifest that any proof was hardly required. Section 16, as
originally enacted, fell under this category and we have already geld that to
the extent it discriminated between two groups of illegitimate children in the matter
of conferment of status of legitimacy, it was violative of Article 14. The vice
or the mischief from which unamended Section 16 suffered has been removed or
not is our next concern.
Hindu Marriage Act, 1955 is a beneficent legislation and, therefore, it has to
be interpreted in such a manner as advances the object of the legislation. The
Act intends to bring about social reforms. conferment of social status of
legitimacy on a group of innocent children, who are otherwise treated as
bastards, is the prime object of Section 16.
Learned counsel for the appellant tried, at this stage, to invoke Heydon's Rule
which is a sound rule of construction of a statute firmly established in
England as far back as in 1584 when Heydon's case (1584) 3 Co Rep. 7a was
decided that for the true interpretation of all statutes in general, four
things are to be discerned and considered:
What was the common law before the making of the Act,
What was the mischief and defect for which the common law did not provide,
What remedy the parliament hath resolved and appointed to cure the disease of
the commonwealth, and
true reason of the remedy; and then the office of all the judges is always to
make such construction as shall suppress the mischief, and advance the
rule was approved in In re Mayfair Property Company (1898) 2 Ch 28 (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.
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;
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 which avoids the mischief and
advances the remedy, specially in the case of a beneficial statute, is adopted.
There is some controversy whether Heydon's rule can be invoked in any other
situation specially where the words of the statute are clear and unambiguous.
In C.I.T., M.P.& Bhopal vs. Sodra Devi AIR 1957 SC 832, it was indicated
that the rule in Heydon's case is applicable only when the words in question
are ambiguous and capable of more than one meaning. That is what was expressed
by Gajendragadkar, J. in Kanailal Sur vs. Paramnidhi Sadhukhan AIR 1957 SC 907.
In Maunsell vs. olins (1975) 1 All ER 16 (HL) P-29, Lord Simon explained this
aspect by saying that the rule in Heydon's case is available at two stages;
first before ascertaining the plain and primary meaning of the statute and
secondly at the stage when the court reaches the conclusion that there is no
such plain meaning.
that as it may, we are not invoking the Rule but we have nevertheless to keep
in mind the principles contained therein to examine and find out whether the
mischief from which the earlier legislation suffered on account of use of
certain words has since been removed and whether the subsequent legislation is
constitutionally valid and, on account of use of new phraseology, implements
effectively the intention of the legislature in conferring the status of
legitimacy on children, who were, otherwise, illegitimate.
Keeping these principles in view, let us now proceed to examine the amended
provisions of Section 16.
Section 16 was earlier linked with Sections 11 and 12.
account of the language employed in unamended Section 16 and its linkage with
Sections 11 and 12, the provisions had the effect of dividing and classifying
the illegitimate children into two groups without there being any nexus in the
statutory provisions and the object sought to be achieved thereby. It is to be
seen whether this mischief has been removed.
Section 16(1) begins with a non obstante clause.
"Non Obstante clause is sometimes appended to a Section in the beginning,
with a view to give the enacting part of the Section, in case of conflict, an
over-riding effect over the provision or Act mentioned in that clause. It is
equivalent to saying that in spite of the provision or Act mentioned in the non
obstante clause, the enactment following it, will have its full 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
The words "notwithstanding that a marriage is null and void under section
11" employed in Section 16(1) indicate undoubtedly the following :-
Section 16 (1) stands delinked from Section 11.
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.
Benefit of legitimacy has been conferred upon the children born either before
or after the date on which Section 16(1) was amended.
Mischief or the vice which was the basis of unconstitutionality of unamended
section 16 has been effectively removed by amendment.
Section 16(1) now stands on its own strength and operates independently of
other Sections with the result that it is constitutionally valid as it does not
discriminate between illegitimate children similarly circumstanced and
classifies them as one group for conferment of legitimacy.
16, in its present from is. therefore, not ultra vires the Constitution.
Section 16 contains a legal fiction. It is by a rule of fictio juries that the
legislature has provided that children, though illegitimate, shall,
nevertheless, be treated as legitimate notwithstanding that the marriage was
void or voidable
When an Act of parliament or a state Legislature provides that something shall
be deemed to exist or some status shall be deemed to have been acquired, which
would not have been so acquired or in existence but for the enactment, the
Court is bound to ascertain the purpose for which the fiction was created and
the parties between whom the fiction was to operate, so that full effect may be
given to the intention of the legislature and the purpose may be carried to its
logical conclusion. (See: M/s JK Cotton Spg. & Wvg. Mills Lte. vs. Union of
India AIR 1988 SC 191; American Home Products Corporation vs. Mac Laboratories
(1986) 1 SCC 456= air 1986 SC 137).
Asquith in Bast End Dwellings Co. LTD. V. Finsbury Borough Council, (1952) AC
109 B: (1951) 2 All ER 587 observed that when one is bidden to treat an
imaginary state of affairs as real, he must surely, unless prohibited from
doing so, also imagine as real the consequences and incidents which inevitably
have flowed from it-- one must not permit his imagination to boggle' when it
come to the inevitable corollaries of that state of affairs. (See also : M.
Venugopal vs. Divisional Manager, LIC (1994) 2 SCC 323.
view of the legal fiction contained in Section 16, the illegitimate Children,
for all practical purposes, including succession to the properties of their
parents, have to be treated as legitimate. They cannot, however, succeed to the
properties of any other relation on the basis of this rule, which in its
operation, is limited to the properties of the parents.
Obviously, appellants 2 to 6 were born prior to the date on which amendments
were introduced in Section 16(1), and consequently they would, notwithstanding
that the marriage between their parents had taken place at a time when there
was a legislation prohibition on the second marriage, be treated as legitimate,
and would, therefore, inherit the properties of their father, Raman Nair, under
Section 16(3) of the Act.
the result, all the three appeals are allowed.
suit No. 38 of 1976 for exclusive possession of certain items of property is
dismissed. The other suit, namely, O.S. No 39 of 1976 for partition of half
share in the tenancy land, filed by the respondents against appellant No. 1
alone, is also dismissed. It will, however, be open to them to seek such relief
as may be available to them under law. O.S. No 99 of 1977 filed by the
appellants is decreed with the finding that the appellant no.1 being widow and
appellant no. 2 to 6 being sons of Raman nair, are entitled to their share in
the properties left by him. It is on this basis that the trial court shall now
proceed to complete the proceedings in this suit for partition. Appellants
shall be entitled to their costs.
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