Topic: Parayan kandiyal Eravath Kanapravan Kalliani Amma vs K. Devi

Parayan kandiyal Eravath Kanapravan Kalliani Amma vs K. Devi
Equivalent Citations: 1996 AIR 1963, 1996 SCC (4)76 - Bench: Ahmad Saghir S. (J), Kuldip Singh (J) - Citation: 1996 AIR 1963, 1996 SCC  (4)     76, JT 1996 (4)   656, 1996 SCALE  (4)131 - Date o Judgment:26/04/1996

J U D G M E N T S.
Ahmad Saghir S, 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;


(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.