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 Page 1 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 2 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 3 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 4 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 5 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 6 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc
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 Page 7 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 8 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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".
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 Page 9 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 10 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 11 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 12 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 13 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 14 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 15 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 16 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 17 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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 Page 18 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 ::: rpf.19.2016.doc 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.) Page 19 of 19 ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:43:59 :::