Sherla V.

rpf.19.2016.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

REVIEW PETITION NO.19 OF 2016
IN
FIRST APPEAL NO.577 OF 2015

Indubai Jaydeo Pawar Anr. … Petitioners

Vs.

Draupada @ Draupadi Jaydeo Pawar Ors. … Respondents

Mr.M.B. Deshmukh for Petitioners

Mr.C.M. Kothari for Respondents

CORAM: Mrs.MRIDULA BHATKAR, J.
ORDER RESERVED ON : MARCH 16, 2017
ORDER DELIVERED ON: JUNE 7, 2017

ORDER:

1. The judgment and order dated 10.2.2016 passed in First

Appeal No.577 of 2015 is the subject matter of this review petition.

The petitioner is the second wife of late Jaydeo Pawar and both

the wives claimed pension amount of Jaydeo Pawar after his

death. Both the wives alongwith their respective children claimed

property. Jaydeo Pawar died on 10.7.2003. during the pendency

of the suit, his first wife Draupada died on 14.2.2006 so her

children being the legal representatives of Jaydeo Pawar and

Draupada, contested the matter. The appeal filed by the

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respondent Draupada was allowed. It is held that the first wife has

a right in the property and the second wife i.e., Indubai, cannot

have any right to receive the family pension. The petitioner

aggrieved by the said order challenged the said order before the

hon’ble supreme Court and the hon’ble Supreme Court in Special

Leave to Appeal No.6966 of 2016 by order dated 18.3.2016

passed an order as follows:

“After arguing for sometime, the learned counsel for the
petitioners submitted that even assuming that the petitioner
No.1 is not entitled to the family pension, since the marriage
is void even then the child born in that marriage will be
entitled to succeed to the property of his father. It is not clear
whether the petitioners had taken this issue before the High
Court. We feel it will be appropriate to take up this issue
before the High Court by way of review, so that the
respondents need not be unnecessarily called to this court,
in a family pension case.

The Special Leave Petition is disposed of permitting
the petitioners to file a review application before the High
Court. If it is filed within thirty days, the same will be
considered on merits.”

2. Inter alia, the review petition was filed.

3. The learned Counsel for the petitioner has submitted that

while passing the order, certain facts are not taken into account

proving the validity of the marriage on 22.6.1981 of Indubai and

Jaydeo. He submitted that if the age of Draupada and her date of

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marriage are valid then it shows that Draupada was 11 years old

and it itself nullifies the claim of Draupada that she got married first

with Jaydeo. He further submitted that the evidence of Gram

Sevak that the third entry in the marriage register of Draupada and

Jaydeo was made subsequently is not considered. He further

submitted that under the Right to Information Act, after the first

appeal, legal heir of Indubai i.e., Shubhangi, contacted the printing

press where the wedding cards of Draupada and Jaydeo allegedly

published in the year 1979. However, the press itself came into

existence in the year 1991, so the wedding card is fabricated. He

submitted that this evidence is required to be considered. He

further argued that under section 16 of the Hindu Marriage Act,

Shubhangi, the daughter of Indubai, has right in the property of her

father even though the claim of Indubai is rejected on the ground

of void marriage. He produced a birth certificate of Shubhangi

dated 22.9.1987. He also relied on the order of maintainance

dated 12.4.1994 which was granted by the learned JMFC, Vita,

District Sangli in Criminal Miscellaneous Application No.225 of

1989 passed under section 125 of the Code of Criminal Procedure.

He also relied on a purshis filed by Indubai earlier in the

maintainance proceedings seeking permission to withdraw the

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matter as Indubai again started residing with Jaydeo and the said

purshis was allowed on 28.5.1985.

4. Mr.Kothari, the learned Counsel, opposed this review

petition. He submitted that this petition is not maintainable. The

order of this Court in respect of second marriage is upheld by the

hon’ble Supreme Court and hence, that finding cannot be

disturbed. He further submitted that the documents which are

produced today, could have been obtained by the petitioner with

due diligence at the time of trial. However, these documents were

not produced during the trial and therefore, cannot be considered

at this stage. The learned Counsel further submitted that under

section 16 of the Hindu Marriage Act, Shubhangi is not entitled to

any benefit on two counts – firstly, that her paternity is doubtful.

Late Jaydeo Pawar has made a will on 17.5.2002, which is

probated on 17.5.2002 and the probate is not challenged by the

petitioner. In the will, the late Jaydeo Pawar has specifically

mentioned that Indubai was debauched and was in relationship

with one Bhiku B. Chavan, Kanapur and out of that relationship,

she delivered a daughter i.e., Shubhangi. In the will, it is stated

that Indubai was not his legally wedded wife and Shubhangi is not

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his daughter and he has filed the petition No.45 of 1995 for

declaration that Shubhangi is not his daughter in court of Civil

Judge Senior Division, Sangli and he has bequeathed the entire

property to his wife Draupada and his sons Netaji and Satyawan.

Secondly, the learned Counsel submitted that the terminology used

in section 16 is to be considered in a strict sense. The section

states the child should have been born out of the void marriage,

then only the right of such child who has born out of the void

marriage, is protected under section 16. In the case of Jaydeo and

Indubai, no marriage was even performed. No evidence is on

record of such marriage is produced so when there was no

marriage, she cannot get any protection under the statute.

5. Mr.Kothari, the learned Counsel has submitted that in this

review petition, the validity of the marriage of Draupada cannot be

challenged and cannot be decided. He argued that the paternity of

Jaydeo as father of Shubhangi is doubtful. There are witnesses,

who had appeared before the trial Court, who gave evidence that

Indubai earlier had married twice. There is no evidence to show

that Shubhangi is the daughter of Jaydeo. He further submitted

that there is no evidence to show that when her earlier second

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marriage was dissolved. Under section 16 of the Hindu Marriage

Act, an illegitimate child who is claiming right in the property should

be born out of void marriage. If there is no marriage at all, then,

that illegitimate child cannot be given benefit under section 16. He

further submitted that there is no basis as to the assumption of

paternity of Jaydeo as father of Shubhangi. He further submitted

that the evidence of maintainance proceedings is a negative

evidence that as she got maintainance and therefore, it is to be

presumed that she was the wife, is not a logical proposition. A

marriage cannot be proved on the basis of this order. He further

submitted the purshis of withdrawal of proceedings under section

125 by Indubai, which is relied by the learned Counsel for the

petitioner is neither joint purshis nor the signature of Jaydeo is

appearing. Therefore, Shubhangi has no right to ask for

pensionary amount.

6. Mr.Kothari relied on two judgments in Reshamlal Baswan

vs. Balwant Singh Jwalasingh Punjabi Ors. 1. and Chodon

Puthiyoth Shyamalavalli Amma Singh vs. Kavalam Jisha

anr.2 on sections 16 and 11 of the Hindu Marriage Act.

1 (1994) M.P. LJ. 446
2 AIR 2007 KERALA 246

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7. Heard submissions.

8. Section 16 of the Hindu Marriage Act reads as under:

“16. Legitimacy of children of void and voidable
marriages. (1) Notwithstanding that 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 be 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.”

9. A child if born in a marriage which is null and void under

section 11, is legitimate under section 16 of the Hindu Marriage

Act. The second half of the section says that “whether or not a

decree of nullity is granted in respect of that matter under this Act

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and whether or not the marriage is held to be void otherwise than

on a petition under this Act”.

10. Section 16 was introduced by the Act No.68 of 1976 to

recognise the right of an illegitimate child in the father’s property.

There is no doubt that in an ancestral property of the father,

illegitimate child cannot claim any share. However, he has equal

right like his legitimate sibling in the property of his father. The

Legislature has taken a progressive step by introducing this

section with a view to remove certain social anomalies in respect

of the child born to a couple in the void marriage. Marriage is a

social bonding and birth is a natural phenomenon. How and when

to take birth is not in the hands of a person and therefore, such

child cannot be deprived of proprietary benefit which he should

have secured, if he would have been born within the valid wedlock

of his father and mother. Proprietary right and legitimacy are legal

concepts having a number of social interlinkings of different

relationships. Mr.Kothari, the learned Counsel, for giving benecit to

the petitioner under section 16 of the Act, raised objection mainly

on the ground of language and terms used in section 16.

According to him, even though a marriage is void, it ought to have

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been a marriage, performed between two individuals. Either there

should be evidence of solemnization of the marriage or there

should have been a decree of nullity in respect of the said

marriage. His submissions revolve around the words “marriage is

null and void under section 11”.

11. Relevant portion of Section 5 and section 11 read as under:

The sub-sections (i), (iv) and (v) of section 5 read thus:

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;

(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;

“11. Void marriages. Any marriage solemnised 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. Thus, the section 11 lays down two propositions. The first

part says any marriage solemnised after the commencement of

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this Act shall be null and void if it contravenes any one of the

conditions specified in clause (i), (iv) and (v) of section 5 of the

Hindu Marriage Act.

13. The second proposition is the latter half of section 11 which

reads as “may, on a petition presented by either party thereto

against the other party, be so declared null and void by a decree of

nullity, if it contravenes any one of the conditions specified in

clauses (I), (iv) and (v) of Section 5.

14. Thus, necessarily it is to be read if the conditions specified in

clause (I), (iv) and (v) of section 5 of the Act are contravened, then,

the marriage solemnized after the commencement of this Act shall

be null and void ipso jure under section (i), (iv) and (v) of section

11 of the Act. Thus, it states that it does not require any order of

the Court to say that the marriage is null and void and if at all the

parties want declaration of nullity, then, they may obtain a decree

by presenting a petition against the other party. The word ‘may’

indicates a voluntariness. Even though a party chooses not to go

to the Court for declaration, the marriage performed in

contravention with the respective clauses under section 5 cannot

obtain a status of a valid marriage. To get a declaration to that

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effect is also optional under section 12 of the Hindu Marriage Act,

pertaining to voidable marriage. The section cannot be read that to

render the character as a void marriage, the party has to obtain a

declaration of nullity. If the marriage is performed between the

parties incapable of giving valid consent i.e., minor, and either of

the parties may or may not apply for decree of nullity and

subsequently, if any issue arises in respect of legitimacy of their

children, then a child, born in such a wedlock of minors, deemed to

be legitimate under section 16 of the Hindu Marriage Act.

15. In the same flow, the further submissions about ‘marriage’

also required to be understood. In the case of Khurshid Bibi vs.

Muhammed Amin3, Justice S.A. Rehman of Pakistan High court

has said, “among muslims, marriage is not a sacrament but it is in

the nature of civil contract. Such a contract undoubtedly, has

spiritual and moral overtones and undertones but legally, in

essence, it remains a contract between the parties…”. Under the

Hindu Dharmashastra, marriage is a sacrament, a whole union or

is an alliance between a man and a woman. It is also named as

‘sanskara’. Under Hindu law, some rituals like Saptapadi, homa

are to be performed and thereafter that relationship is named as
3 P.L.D. 1967 SC 97

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marriage. Hindu law also recognises customary marriage which is

performed in different castes and creeds. However, it requires

some form or actual marriage.

16. Whether a child born to a couple who are in live-in

relationship, can be covered under section 16 of the Act. The

society is going through a transitional phase where instances of

live-in relationship are slowly growing so it is accepted as a

particular mode of social bonding like marriage.

17. A couple may not claim solemnization of any ritual or

customary rights to stay together. They just decide to stay together

in a relationship and if a child is begotten and thus, whether

solemnization of marriage is a condition precedent to acquire the

status of legitimacy is the root question.

18. Maternity is a fact which is admitted and proved, however,

paternity in some cases, especially, when no marriage is

performed, then, is a matter of proof unless it is acknowledged by

the natural father. Sanctity is required to be given to the birth of a

human being and, therefore, for his survival and well being, it is

necessary to fix his proprietary rights. A father of a child cannot

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escape from his responsibility after just giving birth and, therefore,

the rights of such child are to be protected. However, for any such

child born without marriage, there is no legal sanction.

19. Neither the word ‘wife’ nor ‘marriage’ are defined in Hindu

Marriage Act or Hindu Succession Act or also under section 125 of

the Code of Criminal Procedure. The word ‘solemnisation’ is also

not defined but it recognises and means “a performance”

according to the respective customary and religious rites and

rituals. The age old institution of marriage in India has many

shades depending on the different colours of religion, caste and

custom. Since beginning of civilisation, a union of a male and a

female is celebrated after performing customary rituals resulting in

social and legal sanctity. In Hindu Dharma Shastra, Rakshasa

Vivaha and Gandharva Vivaha were also included in eight forms of

marriages. If we refer to Black’s Law Dictionary to understand the

word “marriage, we get different meanings and interpretation and

forms of the word hidden in multiple social layers. For example, a

clandestine marriage, consensual marriage, cross marriage, green

card marriage, a runaway marriage, limited purpose marriage,

marriage of convenience, marriage of conscience, morganatic

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marriage, putative marriage, scotch marriage, etc. Thus, if we

study the social history of mankind, then, we realise that marriage

has no exact or static form. Marriage and family institution is a

cream of the civilisation and backbone of the culture of any nation

or community and, therefore, to regulate the social order,

restrictive meaning is given under the law. The word ‘marriage’ is

required to be understood in common parlance on the backdrop of

requirements under law. Though the marriage is not defined under

Hindu Marriage Act, void or voidable marriage is defined under

sections 5, 11 and 12 of the Hindu Marriage Act. Thus, broadly,

either customary solemnization of marriage is required or

performance of legal formality is a condition precedent to label that

relationship as a marriage. For example, a one night consensual

affair cannot be called a marriage. Merely having a physical

relationship between man and a woman also cannot be called as a

marriage. Any physical intimacy/sexual intercourse which took

place by choice or by chance or by accident is not a marriage.

Thus, though physical relationship is a vital part of the marriage, it

is still something more than that. Basically what is required to call

such relationship as a marriage is firstly the intention and desire of

the parties to marry and to give status to each other as a husband

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and wife. The manifestation of such desire is through performance

of certain religious rites or legal formalities. There is legal, social

or customary requirement of solemnization between the parties.

The duration of marital status also is one of the determining factors

to render them a status of a married couple.

20. The Legislature for the first time in 2005 while enacting the

Protection of Women from Domestic Violence Act, 205 (in short,

DV Act) took cognisance of such social phenomenon and granted

legal status to it under the said Act. Under subsection (f) of section

2, of the Act, in the definition clause, while defining domestic

relationship, the Legislature has used the terminology that through

a “relationship in the nature of marriage” (emphasis supplied).

Significantly, no such change is made in other acts like Hindu

Marriage Act or Succession Act where the proprietary rights of

illegitimate children are involved. Section 16 of the Act, the word

“marriage” is specifically used, so, I do not find any reason to

adopt a definition of domestic relationship for defining the word

‘marriage’ under 16 of the Act. As no amendment is made, no

other meaning can be given to the word “marriage” under section

16 of the Act. On a careful reading of section 16, I am of the view

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that marriage is a condition precedent to decide the legitimacy of a

child. In other words, the benefit of section 16 of the Act is

available to an illegitimate child who is born to parents who have

undergone the rituals/formalities of performance of marriage, may

be void or voidable.

21. I rely on the decision in Revanasiddappa anr. vs.

Mallikarjun Ors. (supra), where it is held that “however one

thing must be made clear that benefit given under the amended

section 16 is available only in cases where there is a marriage may

such marriage is void or voidable in view of the provisions of the

act”. In converse, if there is no marriage may be void or voidable,

then, this benefit of ‘deeming legitimacy’ is not available for the

children, who are begotten out of any physical relationship of a

man and a woman. Thus, the meaning of marriage and the benefit

of legitimacy as contemplated under section 16 is not wide but is

restricted to and controlled by the word ‘marriage’. Any physical

relationship between a man and a woman is not contemplated as a

marriage under section 16 of Hindu Marriage Act. I am constrained

to mention that the society is undergoing a sea-change in social

norms, values and relationships. In some countries, homosexual

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unions are accepted as marriages; so also live-in relationships and

children born within such relationships have posed as complicated

issues and challenge to the legal thinkers to define the term

marriage whether in a wider or narrow meaning.

22. The Supreme Court in the case of Revanasiddappa anr.

vs. Mallikarjun Ors.4 has taken cognisance of changing socio

cultural and economic dynamics of the society and has observed

thus:

“30. With changing social norms of legitimacy in
every society, including ours, what was illegitimate
in the past may be legitimate today. The concept of
legitimacy stems from social consensus, in the
shaping of which various social groups play a vital
role. Very often a dominant group loses its primacy
over other groups in view of ever changing socio-
economic scenario and the consequential
vicissitudes in human relationship. Law takes its
own time to articulate such social changes through a
process of amendment. That is why in a changing
society law cannot afford to remain static. If one
looks at the history of development of Hindu Law it
will be clear that it was never static and has
changed from time to time to meet the challenges of
the changing social pattern in different times.”

23. In the case of Reshamlal Baswan vs. Balwant Singh

Jwalasingh Punjabi Ors. (supra), a learned Single Judge of

the Madhya Pradesh High Court has taken a view that in order to
4 (2011) 11 SCC 1

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attract the provision under section 5 or 11 of Hindu Marriage Act,

there must be a marriage which would be hit by the provisions of

the Hindu Marriage Act and would not cover the relationship

resulting from any other arrangement than marriage.

24. Thus the submissions of Mr.Kothari that there should be a

void or voidable marriage to attract legitimacy to the illegitimate

child, are accepted. However, the facts of the present case and

the evidence tendered herein are not in his favour.

25. In the present case, there is evidence to show that the

petitioner deceased Indubai has stayed with the deceased Jaydev

Pawar for a long time and has got married on 22.6.1981. The

daughter Shubhangi was born within this relationship. The

registration of the birth discloses that the name of the deceased is

Jaydev Pawar as her father at the time of her birth. Under such

circumstances, it can very well be said that in the present case,

there is evidence to show that marriage was solemnized between

Jaydeo and Indubai and the child was born. Further, I rely on the

judgement of the trial Judge who passed the order of maintainance

under section 125 of the Code of Criminal Procedure and the said

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order of maintainance to Indubai was confirmed by the High Court.

I also rely on the contentions raised by the respondent in her

matrimonial proceedings wherein the status of Indubai is

challenged on the ground of “void marriage” and not that there was

no marriage at all. Thus, it can be considered as an admission on

the part of the respondent of the void marriage between Jaydeo

and Indubai. Once it is found that there is overall evidence of long

stay of Indubai and Jaydeo and void marriage between Indubai

and late Jaydev, then, Indubai was married earlier twice or not and

whether petitioner/Shubhangi was born before Indubai’s earlier

marriage was legally dissolved, are immaterial issues. I also sift

through the evidence which shows that there was some

performance of marriage between late Jaydev Pawar and the

petitioner. Thus, though the second wife is not entitled to any

pensionary benefit as the marriage was not valid between them, a

girl child, Shubhangi, who was begotten within such relationship,

benefit of legitimacy is available to her under section 16. Hence,

she will have a similar right like other legitimate children of Jaydeo

in the property of Jaydeo. To that extent, the review petition is

allowed.

(MRIDULA BHATKAR, J.)

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