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Report No. 59

2.5. Proposal not accepted.-

There is also a serious practical risk in allowing the grant of decrees of nullity after the death of either of the parties to the marriage1, because the effect of "it is to bastard and disinherit the issues who cannot so well defend the marriage as the parties both living themselves might have" done2. Then, there is the question of multiplicity. We may refer3 to the observations of Panchapakesa Ayyar J.:-

"The legislature has restricted the summary remedy of an application under section 11 to be actual parties to the void marriage, so that third parties may not interfere harassingly by taking advantage of this cheap remedy of an application."

A void marriage can, no doubt, be invalidated at the instance of other parties4, but it is better not to incorporate the remedies of third parties into the Hindu Marriage Act and confuse matrimonial relief with declaratory relief.

We are, therefore, opposed to the proposed amendment of section 11.

1. See also para. 6.2, infra.

2. Code, 2nd Institute 614: R. v. Sherwood, (1836) 1 Curt 133 (137, 138) (Dr. Lushington): Graveson Century of Family Law, (1957), p. 312, footnote.

3. Lakshmi Amnal v. Ramaswaini, AIR 1960 Mad 6 (7), para. 5.

4. Faremouth v. Watson, (1811) 1 Phil 355 (Void Marriage).

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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