LexMAHARANI KUSUMKUMARI AND ANR. versus SMT. KUSUMKUMARI JADEJA AND ANR.
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MAHARANI KUSUMKUMARI AND ANR. A V. SMT. KUSUMKUMARI JADEJA AND ANR. FEBRUARY 1, 1991 [LAUT MOHAN SHARMA AND M.M. PUNCHHI; JJ.] B Hindu Marriage Act; 1955: Section 11-Petition to declare , marriage a nullity-Whether maintainable after death of petitioner's .._____,,., spouse. · · · Practice and Procedure: Proceedings involving issues relating to marital status-Question dependent upon nature of action and the law C governing the same-Provisions of the relevant statute very material. The appellant No. 1-Maharani was married to a Maharaja in 1960 and the daughter-appellant No. 2 was born of the wedlock in 1964. The relationship between the husband and the wife thereafter ceased to D be cordial and the appellant started living in Bombay and the Maharaja within his estate in Madhya Pradesh. It is the case of the respondent No. 1 that the Maharaja decided to remarry without legally separating from the appellant. The respondent who is a relation of the Maharaja's mother, respondent No. 2, was E misled both by the Maharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under that belief she married the Maharaja and several issue~ were born of this wedlock. In 1974 when the Maharaja died, on application tor grant of p Letters of Administration was filed by the appellant-Maharani> and the respondent No. 1 applied for probate on the basis of an alleged will. 'r- This will was denied by the appellants. These proceedings are still pending. Respondent No. 1 filed an application under Section 11 of the G Hindu Marriage Act, 1955 for declaring her marriage as nullity, and the Maharaja's mother was impleaded as the sole respondent. The appellants intervened and were impleaded as parties. The maintainability of the aforesaid application was challenged by the appellants on the ground that the marriage could not be declared H 193 A 194 SUPREME COURT REPOJUS [ 199l] l S.C.R. a nullity after thedeatJt of the Maharaja but both the trial court and the High Court have rejected thJs p•ea, Ip the ~PPeal t9 this Court, it w@s c,;@ntended on behalf of the appell@pts th~t having regRrd to tile veq speci11.I reliltlonshlp between husbagd and wife, a marriage cannot be dissolved or declared to be a B 11,uJlity QPless b9tfl 9f them are parties thereto. The martml ~totwl Qf Q p.erl!i9D stands on a mJicb higtier footmg th!lD. other positiQ11,s <me may ~oJd in tJle society and c~Qot be aU9wed to be cliallenged Ugbtly, and t!rnt ~h~ J11arrh1ge of a person, therefore, cannot be declpred as nullity after his 4eath ·when he does not have an opportnnity to conte11t. Reliance was placed upon the hmgµagt:i of Se.diQP U of the Hindu M1t.rriage Act. - - · c On behalf pf tlle respm1de11,t, it was poiDted m•t tbot boving regard to tbt:i Janggpge Pf S11~mm 16, pf the llmdn J\'larriage Act ;is it stood befpre Us anie1uhmmt jn 19761 t.b4.! ddldren Jwrn of the respondent WoYJ~ m~i have l>een tlntithid to tile beP.filnt gf the t1edion In absence of a [) de~ree dech,trin~ tbe m1t.rriage Pf their 1nmmts Jis nullity, and this was preciseJy the rea~on thpt the· respqnde.ut had tt> immm.ence the present iiti~*1tion. · · Qp th@ gµ"~tfpm whether a petition under Section 11 of the Hindu M,:~rriQge .t\~t, 1955 fQr ·declaring the marriage of the petitioner RS. a ~ nullity !~ mP.lntaiQ3ble atler tbe deatJt Qf the petitioiie.r's spouse. JlismJ~~ms th~ 3P.Ve""I' tJti~ CPm1,, HELD: 1. An appli~atioP Qpder Section U oftbe Hindu Marriage Act, 1955 before its amendrnent in 1976, was maintainable at the F instanc~ of ~ PRI1Y to tJte nutrrbtge even idler the death of the other ( §pQlJ§e. l20Ulf. . ~ ~' IP t~e insumt case, tbe proceeding was started in 1974 that is, befgre the amemhnent wa& madv 1n tbe llindu Marriage A.ct, 1955. Section 11 did not ~onW.in the WfU'il!i "against the other party". At that G time all that wa$ required w11s On•t the application bad to be filed by a 1n•rty tp tbe marrt11ge under challenge. On the plain language of the ~e~tf9P. Ii)§ it §tggd tbeQ, it 4,!0Uld not be claimed that in absence of the r otller §pgp~ as a party h> the proceedings, the same would not be matptafuable, [l9,7F) H 3. Under the generQI h•w a child for being legitimate bas to be .... M. KUSUMKUMARI v. K. JADEJA 19$ born in lawful wedlock and if the rm1rringe i~ void or decll,ll'ed to ~ ~ .~· by the Court, Jt will necessarily have the effect of ba!!tar
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