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Hindu law : Hindu Marriage Act, 1955 : Section 16. Void marriage-Children-Legitimacy of-Second marriage-Contract of-During subsistence of first marriage-Prior to commencement of Act-Void under S. 5 of Madras Marumakkattayam Act, 1932 then in force-Held : Children born of void second marriage entitled to inherit share in the properties of their parents by operation of amended S. 16. Section 16-Amendment-Legitimacy-Nature of-Pre-amended S. 16-Classified illegitimate children into two groups-Those born of void marriages contracted before Act-And those born of void marriages contracted after Act came into force-Held : Section 16 violative of Article 14 of the Constitution. Section 16-Amendment of-Position thereafter-Amendment removed the mischief and also delinked S. 11 from S. 16-Hence, amended S. 16 was constitutionally valid-It enacted legal fiction whereby illegitimate children were deemed legitimate-Thereby entitling them to succeed to properties of their parents. Madras Marumakkattayam Act, 1932 : Section 5-Polygamy-Void under-Act repealed by S. 7(2) of Kerala Joint Family System (Abolition) Act, 1975-Effect of–Contract of second marriage during lifetime of first wife-Prohibition under S. 5 would operate-Such second mamage would not be affected by the repeal by virtue of S. 4 of Kerala Interpretation and General Clauses Act, 1925-Kerala Joint Hindu Family System (Abolition) Act, 1975, S. 7(2)-Kerala Interpretation and General Clauses Act, 1925, S. 4. Constitution of India, 1950 : Article 14 : Statute-Constitutionality of-Presumption in favour of-Burden of proof is on person challenging constitutionality-To show arbitrary discrimination between persons similarly circumstanced-Presumption-Displacing of-By showing discrimination was apparent and manifest-Duty of Court to look to the statute as a whole to see if classification was valid having nexus with object sought to be achieved. Interpretation of Statutes : Interpretation-Subsidiary rules of-Legal fiction-Purpose of-Parties between whom it was to operate-To be ascertained by Court to give full effect to legislative intent and to carry the purpose to its logical end. Mischief Rule–Language having more than one meaning-Applicability of-Rule in Heydon’s case-When and how to be invoked-Non-obstante clause-Operation and interpretation of. RN contracted a second marriage with Appellant No. 1 during the lifetime of his first wife who was the mother of Respondents 1 to 9, in contravention of the prohibition of such a second marriage under Section 5 of Madras Marumakkattayam Act, 1932 which was then in force. The question before this Court was whether Appellants 2 to 6, who were the children born of the second marriage, would inherit any share in the properties left behind by RN after his death. =Allowing the appeal, this Court HELD : 1.1. Section 7(2) of Kerala Joint Hindu Family System (Abolition) Act, 1975 by which the Madras Marumakkattayam Act, 1932 was repealed does not indicate any intention contrary to the provisions contained in Kerala Interpretation and General Clause Act, 1925 which, will apply with full vigour 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. Repeal in the instant case is a case of repeal simplicitor. Hence, in view of section 4(b) of Kerala Interpretation and General Clauses Act, the previous operation of Madras Act will not be affected by the repeal nor will the repeal affect anything July 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 Section 4(c). RN had contracted a second marriage, in the lifetime of his first wife, when Madras Act 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 by the repeal of that Act. The repeal does not mean that Madras Act never existed on the Statute Book nor will the repeal have the effect of validating RN’s second marriage, if it was already a void marriage under that Act. [17-H, 18-A-D] Balakrishna Menon v. Asst. Controller of Estate. Duty, AIR (1971) SC 2390; Venugopala Ravi Verma v. Union of India, AIR (1969) SC 1094; Achuttan Nair v. C. Amma, AIR (1966) SC 411 and Padmavathy Amma v. Amnuni Panicker, AIR (1995) SC 2154, relied on. Bhaurao v. State of Maharashtra, AIR (1965) SC 1564 and Kochunni v. Kuttammni, AIR (1948) PC 47, referred to. 1.2. Since the Rule of Legitimacy under Section 16 of Hindu Marriage Act, 1955 (HMA) was made dependent 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. Indeed, language is an imperfect instrument for the expression of human thought. [27-E-G] 1.3. The object of Section 16. HMA was to protect legitimacy of children born of void or voidable marriages. In leaving out one group of illegitimate children from” being treated as legitimate, there did not appear to be any nexus between the object sought to be achieved by Section 16, HMA and the classification made in respect of illegitimate children similarly situate or circumstanced. Section 16, HMA was earlier linked with Sections 11 and 12, HMA. On 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. [27-H, 32-F-G] State v. Narsu Appa Mali, ILR (1951) Bombay 775; Srinivasa Iyer v. Saraswathi Ammal, ILR (1953) Madras 78 and G. Sambireddy v. G. Jayamina, AIR (1972) A.P. 156 referred to. 1.4. Legitimacy is a matter of status. 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, Parliament made a law which protected the legitimacy of such innocent children. [26-E, G-H] Ampthill Peerage Case, (1976) All ER 411and Salemi v. Minister for Immigration and Ethnic Affairs, (1977) 14 ALR 1 (7), referred to. “Commentaries on the Hindu Marriage Act, 1955” by K.P. Saksena; “Principles of Hindu Law” by Jogendra Chunder Ghose, 1903 Edn. and “Hindu Law of Marriage Stridhana”, 4th. Edn. (reprinted in India in 1984), referred to. 2.1. 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. 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 unconstitutional 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. 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 the next concern of this Court. [18-G, 30-E-G] 2.2. In order to give full effect to what was intended to be achieved by enacting Section 16, the Parliament intervened and amended Section 16. 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 vigour 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) 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. Section 16, in its present form, is, therefore, not ultra vires the constitution. [33-C-F] K.P. Verghese v. Income-tax Officer, Emakulam and Anr, 131 ITR 597; Bengal Immunity Co. Ltd. v. Slate of Bihar, AIR (1955) SC 661; Goodyear India Ltd. v. State of Haryana, AIR (1990) SC 781; C.I.T., M.P. & Bhopal v. Sodra Devi, AIR (1857) SC 832; Union of India v. G.M. Kokil, [1984] Supp. SCC 196; Chandavarkar Sita Ratna Rao v. Ashalata S. Gumam, [1986] 4 SCC 447 (477); R.S. Ragunath v. State of Kamataka, [1992] 1 SCC 335; Heydon’s case (1584) 3 Co. Rep 7a; Mayfair Property Company, (1898) 2 Ch 28 (CA); Eastman Photographic Materials Company Ltd. v. Comptroller-General of Patents, Designs and Trade-Marks, (1898) AC 571, 576 (HL) and Munsell v. Olins, (1975) 1 All ER 16 (HL) p-29, referred to. T. Ramayammal v. T. Mathummal, AIR (1974) Mad. 321, approved. “Principles of Statutory Interpretation” By G.P. Singh, referred to. 3.1. Section 16 contains a legal fiction. It is by a rule of ‘ficto juris that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable. [33-H] 3.2. In view of 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. [34-E] 3.3. When an Act of Parliament or a State Legislature provides that something shall be deemed to exist of some status shall be deemed to have been acquired, which 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 operation, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion. [34- A-B] M/s. J K Cotton Spg. & Wvg. Mills Ltd. v. Union of India, AIR (1988) SC 191, American Home Products Corporation \. Mac Laboratories, [1986] 1 SCC 465 and M. Venugopal v. Divisional Manager, LIC, [1994] 2 SCC 323, relied on. East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC 109 B, referred to. 4. 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 legislative prohibition on the second marriage, to be treated as legitimate, and would, therefore, inherit the properties of their father, RN, under Section 16(3) of the Act. [34-F-G] CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5473-75 of 1995. =1996 AIR 1963, 1996( 2 )Suppl.SCR 1, 1996( 4 )SCC 76, 1996( 4 )SCALE131 , 1996( 4 )JT 656

PETITIONER:

English: reproduction of Nair joint family, Th...

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SMT. PARAYANKANDIYAL ERAVATHKANAPRAVAN KALLIANI AMMA & ORS .

Vs.

RESPONDENT:
K. DEVI & ORS.

DATE OF JUDGMENT: 26/04/1996

BENCH:
AHMAD SAGHIR S. (J)
BENCH:
AHMAD SAGHIR S. (J)
KULDIP SINGH (J)

CITATION:
1996 AIR 1963 1996 SCC (4) 76
JT 1996 (4) 656 1996 SCALE (4)131
ACT:

HEADNOTE:

JUDGMENT:
J U D G M E N T
S. SAGHIR AHMAD, J.
“A million million spermatozoa
All of them alive :
Out of their cataclysm but one poor
Noah
Dare hope to survive.
And 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 :-
2. Parayankandiyil 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.
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 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.
5. All 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.
6. 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.
7. Mr. 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.
8. The 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.
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
“In the three mantras of Laja
(parched paddy) Hawan, the bride
says :-
“I give oblation to the Fire
God, the destroyer of enemies.
With the grace of the said
destroyer of enemies, may I never
be separated from my husband’s
house.
Other unmarried girls have
worshipped the Fire God, the
sustainer of the earth, for the
fulfillment of their desire.
Knowing 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.
I 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.
May 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.
May my husband live long and
my kinsmen be prosperous. May this
oblation be acceptable to the Fire
God.
I cast 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.
O bride ! trace your second
step. by this may our strength
grow, may God let me keep your
company till I live.
O bride ! trace your third
step, by this may our wealth
increase. May God let me keep your
company till I live.
O bride ! trace your fourth
step, by this may our comforts and
pleasures increase. May God let me
keep your company till I live.
O bride ! trace your fifth
step. May our progeny increase. May
God let me keep your company till I
live.
O bride ! 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.
O bride ! 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.”
12. 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.
13. 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.
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.
Render 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.
After obtaining may consent
purchase, sell or exchange a cow, a
bull or a buffalo, a goat, an
elephant a horse or camel.
My 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.”
14. Once “Saptapadi” is completed the marriage tie becomes
unbreakable.
15. 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, as under:
“Polyagamy 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.”
16. Sir Gooroodas Banerjee in his book Hindu Law of Marriage
and Stridhana, 4th Edition (re-Printed in India in 1984)”
lays down as under :
“A 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.
It 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 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 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.
18. 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.”
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 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
Council in Kochunni Vs. Kuttanunni AIR 1948 PC 47. This
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:
“In 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.”
22. Marumakattayam 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:
“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.
25. 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 hereinbelow.
26. Section 7 of the Kerala Joint Hindu Family system
(Abolition) Act, 1975 (Act No. 30 of 1976) is reproduced
below:
“7. 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.
(2) 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.”
27. In the schedule appended to the Act, the Madras Act is
mentioned at serial No. 1.
28. Section 4 of the Kerala Interpretation and General
Clauses Act provides, inter alia, as under:
“4. Effect of repeal –Where any
Act repeals any enactment hitherto
made or hereafter to be made, then,
unless a different intention
appears, the repeal shall not–
(a) revive anything not in force or
existing at the time at which the
repeal takes effect; or
(b) affect the previous operation
of any enactment so repealed or
anything duly done or suffered
thereunder, or
(c) affect any right, privilege,
obligation or liability acquired,
privilege, obligation or liability
acquired,accrued or incurred under
any enactment so repealed; or
(d).. ..
(e).. ..
29. In 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.
30. 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.
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 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.
The 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.
33. 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.
34. 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.
35. 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.
36. In 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).
Section 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 under:
“5. (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.
(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 the performance of
any marriage in contravention of
section 11 shall be punished with
fine which may extend to one
hundred rupees.”
38. 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 under:
“9. 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 first wife.
39. 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 Constitution.
40. The Bombay High Court in state Vs. Narsu Appa Mali ILR
(1951 ) 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 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 uniform codified law concerning marriages.
44. It 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.
45. Other relevant provisions of the Act also be noticed.
46. Section 4 of the Act provides that the Act shall have an
overriding effect. It provides as under:
“4. 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 this Act.
(b) any 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.”
47. Conditions for Hindu marriage are indicated in Section 5
which is quoted below:
“5. 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;
(ii) 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;
(iii) the bridegroom has completed
the age of (twenty one years) and
the bride the age of (eighteen
years) at the time 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 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.”
49. Sections 11 and 12 which are referred to in section 16
above are also quoted below:
“11. 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:
(a) that the marriage has not
been consummated owing to the
impotence of the respondent;
or
(b) that the marriage is in
contravention of the condition
specified in clause (ii) of
section 5; or
(c) 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.
(2) 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;
(b) on the ground specified in
clause (d) of sub-section (1) shall
be entertained unless the court is
satisfied:
(i) that the petitioner was at
the time of the marriage
ignorant of the facts alleged;
(ii) 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.”
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 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.
52. 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.
53. 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
observed:
“Legitimacy 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.
Motherhood, 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:
“I 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.”
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 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.
57. In 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.
58. In 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.
Indeed, language is an imperfect instrument for the
expression of human thought.
59. 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 Constitution.
60. 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.
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 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.
But 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 that:
“In 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.”
63. It 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).
64. In 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:
“this clause seeks to substitute
Section 16 so as to clarify the
intention and to remove the
difficulties in interpretation.”
65. 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.
(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, 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.
67. 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.
68. 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.
69. 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:
(1) What was the common law before
the making of the Act,
(2) What was the mischief and
defect for which the common law did
not provide,
(3) What remedy the parliament hath
resolved and appointed to cure the
disease of the commonwealth, and
(4) the 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
remedy….
70. Heydon’s 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.
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 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.
Be 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.
72. Keeping these principles in view, let us now proceed to
examine the amended provisions of Section 16.
73. Section 16 was earlier linked with Sections 11 and 12.
On 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.
74. Section 16(1) begins with a non obstante clause.
75. “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 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) 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.
Section 16, in its present from is. therefore, not
ultra vires the Constitution.
77. 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
78. 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).
Lord 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.
79. In 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.
80. 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.
81. In the result, all the three appeals are allowed.
Respondents’ 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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