Report No. 59
6.1A. Section 11 and petition for nullity after death of spouse.-
The question whether a declaration can be obtained under section 11 of the Hindu Marriage Act after the death of either party1 is a matter of some uncertainty. The question came up for consideration in a recent Punjab2 case, where all the cases are reviewed. In the Punjab case, a petition under section 11 was filed after the death of the husband by Kishni Devi, one of the widows, impleading the (other) widow of her husband as a respondent, and claiming a declaration that the petitioner's marriage with her (late) husband was a nullity. Apparently, the ground for seeking such declaration was that the petitioner's husband had been already married to the respondent. The petition was dismissed on the ground that it was not maintainable in view of the husband's death.
On appeal, the High Court set aside the dismissal, emphasising that in the case of a void marriage, there is no marriage in the eye of law. The High Court held that one of the spouses in such a marriage can obtain a declaration from the court about her status quo even after the death of the other spouse. The High Court dissented from the contrary view taken by the Madras High Court3. We ought, however, to point out that in such a case, the proper remedy is a suit under the Specific Relief Act4. A petition under section 11 of the Hindu Marriage Act cannot be appropriate, because the other spouse is an essential party to any such petition. This should be clarified by an amendment.
1. See also para. 2.5, supra.
2. Kishni Devi v. Tulsani Devi, 1972 Punj LR 561.
3. (a) Gori Animal v. Tulsi Ammal, AIR 1962 Mad 510; On appeal Tulsi Ammal v. Gori Ammal, AIR 1964 Mad 118. (b) Paramsami v. Sarnathammal, AIR 1969 Mad 124.
4. Section 34, S.R. Act, see para. 2.6, supra.