Bombay High Court
Shantaram Tukaran Patil And Anr. vs Dagubai Tukaram Patil And Ors. on 9 January, 1987
Equivalent citations: AIR1987BOM182, 1987(1)BOMCR714, (1987)89BOMLR51, AIR 1987 BOMBAY 182, 1987 (2) HINDULR 343, (1987) 1 BOM CR 714, (1987) 1 HINDULR 460, (1987) 2 CURCC 450, (1987) 2 DMC 100, (1987) MAH LJ 179, (1987) MAHLR 777, (1987) 89 BOM LR 51, 1987 BOM LR 89 51
JUDGMENT Jahagirdar, J.
1. The appellants in this appeal were defendants 1 and 2 in Speical Civil Suit NO.30 of 1979 which was filed by respondents 1 to 4 in the Court of the Civil Judge, Senior Diuvion , at Dhule . For the sake of convenience, the parties will be refrerred to as the "plaintiff" and the "defendat". In orderto understand the nature of the suit it is necessary to mention the relationship between the parties.
2. One Tukaran had been married to Dagubai, whi is plaintiff 1 She has three daughter from Tukaram. They are plaintiff 2, 3 and 4. During the subsistience of his maraige with Dagubai, Tukaram marreid LIlabia, who is defendant 2, sometime in the yesr 1976. From her he got a son, shantaram, whi is defendant 1. Tukaram died in JUne, 1978. The plaintiff field the suit against the defendant who were in possession of several propertis which had been left by tukaram. The suit ws, in particular , for a declaraation that the defendant were not the legal heirs of Tukaram, that they had no right, title or ....Since the plaintiff who were four in number, were entitled to succeed to the estate of Tukaram, they also pryaed for partition and possession of the properties to the extent of 1|4 share toeach of them. In the alternative they prayed that in cse it was held that the first defendant had ashare in the properties then the Court should determine the shares and peartition the properties and give the same in the resepctive possession of the parties. The main thrust to of the plaintff, therefor in the suit was that the defendatn were not the legal heris of Tukaram during the subsistence of the latters valid mariaage with the first plaintiff.
the defendants ressted the suit by contending that plaintiff 1, namely Dagubai, had been divorced by Tukaram as per the custom governing the community to which the parties belonged and it was thereafter that Tukaram maraie with defendant 2 took place. Hence the marriage between defendant 2 and Tukaram was valid and therefore the defendat were the heris of Tukaram.
3. The learnbed trial Judfge, after faming the necessary issues, held that though there was coustom which permitted divorce paet from the Hindu Marrigage Act in the community to which the parties belonged as a matter offact there was no divorce between Tukaram and dagubai. He therefore necessarily held that Tukaram maragie with defendant 2 was void under the provisions on S. 11 read with S. 5(I) , Hindu Marraige ACt. The result ws that defendant 2 was not be the validy married wife of Tukaram . In the absences of abetter compact word, we would be referring toher as the illegitimate wife. The first defendant who was the offspring of defendant 2 from her marrigae with Tukaram, was natually an ilegitimate son but for the provision contained in s. 16, Hindu Marraige Act.
4. The legal consequence , according to the learned trila Judge was that neither of the defendant had ashare in the properties of Tukaram. He however, held that both the defendant were entitled to o maintenace,. For this the learned trilal Judge relied upon Rajesbai Sadashic Khianar v. Shantabai Sadashic Khainar, , wherein it has been heldby Masodkar, J that "where in any collateral proceedings after the death of a Hindu husband, a finding is recorded by a competent Civil court that this his marriage with a woman ws viod de juere that woman would be entitled to rely on the principles of s. 25, Hindu Marriage ACt, and invoke the powers of the Court for making provisions for just and fair maintenace". While so holding, Masodkar, J in fact purposrted to apply a ruling of another judgement of this court,namely Govidrao v Anandibai (by Kania J as he then was), . As far the right of maintenance of childeren born of a viod maraige is concerned, s. 21(viii) read with s. 22 Hindu, Adoptions and Maintenavce Act, 1956, was sufficient authority. The leanred that teil Judge, theefore proceeded to declare that defendant were nothe legal heris of deceased Tukaram, and therfore they did not hae any right, title or inerest in for the properties left byhim except the claim for maintenace. He also directed the defendant deliver possession of all the properties to the plaintiff .The plaintff who were four in number were entitled to 1|4 share in the said properties. Usual directions under O. XX, R 12 (1) ( c), Civil P.C. were also given. The learned trial Judge also decreed that defendant 1 do recover Rs, 2,400 per year as maintencce till the becomes major from Jan 1983 and similarly defedant 2 do recover Rs. 2,400 per years as maintenace for her life from jan 1983 as long as she remained unmarried. Charge was kept on the properties for the maintenace of both the defedants. This was done by the learned trial Judge by his judgement and order deated 14th Deceber, 1982.
5. The defendants have challenged the said judgement and decree of the court below by contending that the Court below erred in holding that there was no divorce of Dagubnai by Tukaram. The defendant have also urged in this appeal that childern of a void marriage are letitimate for the purpose of succession to the property of the family in which they are born and ,mtherefore, defendant it is entitled to a share in Tukaram propertiess.
6. The plaintiff have field cross objections wherein has been urged that defendant 2, whose marraige with Tukaram has been held to be void, is not entitled to maintenace at all. According tothe plaintiff, there is no authority of law under which defendant 2 could legitimately claim maintenace, especially after death of the person to whom she had been married.
7. In respect of the finding recorded by the trila Court on the question of the divorce of Tukaram from Dahubai, it had been urged in the Court below that sometime in the year 1960 Tukaram had tranfered some of his proerties in favour of Dagubai for her maintenance. It is suggested that this Tukaram would not have dioneif he had not divorced her. There is enogu evidence to show that such transfer of properties whas in fact that such transfer of properties was in fact made in favour of Dagubai by Tukaram sometime in the year 1960. Mr. Tipnis, the learned Advocate appering for the defendant relied upon this circumstaces for persuading us to hold that there a divrce between Tukaram and Dagubai . It has alsoben urged by Mr,. Tipnis that the fact that Tukaram and Dagubai did not have any male issue, though they have some sort of compulsion on the part of Tukaram to take a second wife who would, according to the prevalaent sentiment in the commutnity would have give him a son. Apart from these two circumstances, which Mr. Tinpnis regard as strong circumstances, there ist he oral evidecne of one Babula, who was examined as defence witnes 5.
8. The fact that Tukaram tranferred some of his properties in favour of Dagubai in the year 1960 for maintenacne is , in our opinion, of little significance. At the most it may suggest that Tukaram and Dagubai were living separately. Even that seems to be doubtul because a dauther Sunada was born to them in the year 1961. Inmy case, such a circumstances as transfer of some properties by Tukaram in fovour of Dagubai, his wife does not, in our opinion , suggest that they were divocred. Somewhat stronger and nore perusasive evidence is necessary ot hold that couple who are maried validdly are validy divorced. Similarly, the fact tht the couple did not have any lae isue itself would not suggest that Tukaram had divorced his wife Dagubai. It may be Noted that the transfer of properties in favour of Dagubai took place sometime in the year 1960 . The last of the three daughter was born to Dagunai in the year 1961. The second mariage admittedly took plce in the year 1976. If Tukaram wanted to marry again to have a son after his apparent dissatisfaction with Dagubai who gave him three daughter, he would not have him three daughter, he would not have waited for nearly 15 years for the second marriage . It may be true that Tukaram like so many ingnorant person both in Indain and abrad, bneleived that the sex of a child is dterminded by the wife. It is a superstition which compes husnabd to seek another wife . It is a superstition which compels a husband to seek another wife and brings misery to the lives of innocent women who for no fault of their do not bear a male child,. It is more that adequately established that the determination of the sex of a child is wholly accidental neither the husband nor the wife making any contribution t it. At the time of the fertilization to of the female egg and the spermatozoa, the sex is determined depending upon the nature of the fertilization (see Encyclopaedia Britanncca,, Volume 27, 15th Edition page 250). Though Tukaram might have shard an eagerness to have a male child to on the facts of this case wer are satissfied that he facts of this case we are satisfied that he did not dicorce Dagubai in the year 1960 as contended by the defendants inoder to take a second wife for the purpose of having a male child.
9. The oral evidenvce of defendant witness 5, namely, Babulal, alsl does not inspire confidence in us, as it did not do in the mind of the learned trial Judge. His evidence is too vague, full of conjectures and surmises to be relied upon a matter of this type. He has in the first place deposed that thtere is a custiom is thiere community where by a documents is preppared in the presence of ppanchas under which a divorce is given. We need not dwell upon the question of this custom. Wheter in fact tukaram gave divorce to Dagubai is a question which is to be answered . In paras 3 and 4 and of his deposition, which is under thecross examination this witness has gven answer which unmistaably show that he has come only to oblige the defendat. He does not remeber the Tithi or on what day of the week Tukaramm gave or on divorce to dagubai, .He hs stated earlier in his deposition that such divorces are reduced to writing on a stamp paper in the case of Tukaram dicorce he does not remeber in whose name the stamp paper was purchased. That documant itself has not been made available to the Court . It is also difficult to accpet his evidence ion behalf of the defendant because it has been brought out in the cross examination that the first plaintiff has filed two criminal cases aganst him. There is no other evidence to coorroborate the testimony of Babulal. It s impossible to hold that Tukartam and Dahubai have dovorced in the year 1960 on the basis of the evidece gven by a witness in the year 1982 when the witness himself was about 20 years old when the divorce is alleged to have taken palce. We have no dificulty in confirming the finding of the learned trial Judge that there was no divorce between Tukaram and Dagubai. The result is that defendant was not validly married to Tukaram and , as stated earlier, is the illegitimate wife. She is terefore not entitled to any share in the properties of Tukaram. Another result is that defendat 1 isthe child of a void mariage . If is held as the learned trial Judge has held, that defendatn is the illegitimate son, hten he also would not be entitiled to any share in the properties to of Tukaram but would be entitled to maintenace as provided for in the Hundu Adoption and Maintenace. ACt.
10. Mr. Tipnis has then proceeded to contend that defendant 1, though a child of a void marraige, is entitled 1, though in the properties at elast his paranes and in the instant case in the proeprties of Tukaram because s.16, Hindu Marraiage Act, specifically provieds that chilederedn of a maraagie which is void are not to be regared as illedgtimater. There are somer judgement which have,, according to Mr. Tipnis taken this view and they ought to be followed. It is necessary for us to review thses judgemnt . They all are by single Judges of this Court. Beofre we do that however, it is necessary to set dwin the legal matrix in which this question has to be viewed. Secion 16 Hindu Marriage Act, before its amendemt in the year 1976, was as folows:-
"16 Where a decree of nullity is granted in respect of any marraige under S. 11 or S 12 any child begotten or conceived before the decree is made who would been have the letimate child of the parties tot he marriage f it had b een dissolived instead of having been declared null and void or annulled by a decree of nulity shall be deemed to the their legitimate child notwithstanding the decree of nullity:
Provided that nothing contained in this section shall be construed as conferring upon and child of marraige which is declared nuill and viod or annulled by a decree of nullity any right in or to the proerty of any person other than the pareent in any case where, but for the passing of this Act, such child would have been incpanle of possessing or acquiring any such rights by reasonof his not being the legitimate child of his parents".
11. It will be noticed that prior to the amendment , s. 16 took cognisance of only those cases where a decree of nullity had been passed. The proviso tothe said Section a stated that any child of a marraige which is declared null and void or annulled by a decree of nullity did not acquire any rights in or to the rpoetty of a person other that the paraents. There are undoubetdly cases where a decree of nulity may not be passed but yet a marraigae may be void under the provisions of the Hindu Marraige Act. the children of such a ,marraige would also be illegitimate, but s. 16 as it stood prior to the amendment in the year 1976 did not cover such cases., The Parliament substitutied the old s. 16, Hindu Marriage Act, buy the following Section by act, LXVIII of 1976: -
"16(1) Notwithstanding that a maraige is null and void under s. 11, any child of such marraige who would have been legitimate if the arraige ahad been valid, shall be letitimate, whether such childs is norn before of after the commencementof the Marraige Law (amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whter or not the marraige is held to be void othersie than on a petition udner this Act.
Where a decree of nulity is granted in respect of a voidable maraige under s. 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of ht eparties t the marraige dissolived instead of being annulled, shall be deemed to be their legitimate child notwithstandig the decree of nullity.
Nothing contained in sub-s (1) or sub-s (2) shall be constured as conferring upon any cild of a maraige which is null and void or which is annulled by a decree of nullity under s. 12,any rights in or to be the property of any person, other the parents, in any case where, but for the passing of this Act, such child for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reasosn of his not being the legitmate child ofhis parents."
the present position therefore is that tany children of a marraige which is null and viod under s.11 Hindu Marraige Act, whether there has been a decree of nullity granted in respect of that marraige or not or whether the said maraige has been held to be void or nt in proceedings under the Hindu Marraige Act, would be regarded as legitimate. The legitimacy, therefore, extends not only tothe children of a void marraige which has been declared so in proceedings under the Hindu Marriage Act but also tot he childen of such a marrige, whether it has been so declared or nt in proceedings under the Act. The proviso to the original s. 16 is sub-s (3) int he new s. 16. The effect of conferring legitimacy on a child of a void maraige is the same today as it was before the amendment of 1976.
12. The first judgement that has been brought to our notice is the ne in Dadoo Atatam v. RAghunath, (Pratap J.). In this case the provision of s,. 16, Hindu Marraige Act, were not brought tothe attention of te learned Hudfe at all who, therefore, proceeded to decide the question whtehr an illegitmate son can succeed to te property of his father. Naturaly, s. 3(1)(j), Hindu Succession Act, ws noticed. It defines "related" to mean Succession ACt, provides for the devolution of the property of a male Hindu dying intestate in the Schedules to the Act, It is threfore, clear that a relative must be a legitimate to the ....... Hindu Succession act. Sicne a child of a maraige which is void unde the provisions of the hindu marraige Act is an illegitimate child, paratap, J. necessary held that such a child would not be entitled to succeed to the estate of a Hindu male dying intestate under S. 8, Hindu Succession Act. As already mentitoned abovem, the provisions of S. 16, Hindu Marraige Act, were nto same was also not considered by the learned single Judge.
13. The next judgement which has been relied upn by Mr. Tipnis is the one in Laxmibai v. limbabai, . In this judgement, Masodkar, J. Succession Act, and also the proviiosn of S. 16, Hindu Marraige Act. But, unfortunately, the definition of "related" to be found in s. 3(1) Hindu Succession Act, was not considered in this judgement. The learned single Judge, after noticing that legitimacy a has been conferred upon the children of void maraige by s, 16, Hindu Marriage Act, obseved that its effect must be worked out. He therefore, proceeded ot hold that the effect of legitimacy of is to confer the fither in or to the property of the parent. The question whether s. 16 Hindu, Marriage Act controlled s. 3(1)(j), Hindu Succession Act, or vice versa was not considered at all and, therefore nmot answered.
14. In another judgement, namely, in Raghunath, v, nana, (1985) 87 Bom LR 488, the correctness of the decision in Lammibais case (supra) has ben accepted by parakh, J. There is no independent discussion of the question whichis before us. Before we proceed to consider the question in the light of the provision contained in both the Hindu Marriage Act and the Hindu Succession ACt, we feel it necessary to examine the judgement in Raghnath.v. Nana in some details because certain propositions laid down in the said judgement , in our opinion, are incorrect. The learned single Judge inRagunath's case dissented from a decison of another learned single Judge in Hanmanata v. Dhondavvabai, . The facts in Raghnath case were aht one Rama aba Partil had two sons, Nana and Annappa...... was the second wife of Nana whose marriage was null and void unde the provisions of the Hindu Marraige Act. From Ratnabai, Nana had a son Raghunath, who a was the appellant before the High Court .He had file da ssuit for a share in the property of Nana.
15. The facats furhter disclosed that after Rama's death in the year 1966, the ancestral peoperty a had been partitioned bwtween Nana and Annappa. It mustbe noted that Nana had already a son, Shirpati, The two Courts below had held that RAghunath being an iliegitmate son could not claim any interst tot he proeprty t6hat had come tot he hands of his father Nana during the latters lifetime. Relying upon s 126 Hindu Maraiage Act, the learned single Judge held that Raghunath was entitled to a share in the property which had fallen to the share of his father Nana after the partition between him and annappa. In our opinion, this is wrong because the property which Nana got in the partition of ancestral property between himself and Annappa may be his separate property as against Annapa,but as agaainst his own son shripati it was coparcenary property.It is a matter of tex-book proposition that the share which a coparacner obtains on partition of ancestral property is ancestral property of as regards his male issues. They have an interst in ti buy birth, whether they are in existence at the time of partition or born subsequently. As regards other relations it is separate property . (See Mulla Hindu Law, 15th Edition, page 291).
16. This was the view which has been taken by Hajaranavis , J. in Hanamtas case (Supra). The facts of Hanmanta case showed that Hanmata was the defendant in a suit filed by his validy married wife, Dhondavvbai. She was plaintiff 1 and her son was plaintiff 2 in the suit field by them agsitn Hanmanta for partition and possession. The suit had been decreed by the Court below and Hanmata made a grievance in the High Court , relyinmg upon s. 16,Hindu Marraige Act, as ti then stood, that the child of his illegitimate wife Nagavva, who was defendat 2 , was aslso entitled to a share in this contention wife Nagavva, who was defendat 2, was also entitled to a share in his property. In unequivocal terms this contention ws negatived because it was found that the was ancestral property as regard his son, plaitniff 2. In our opinion therefore, it will be incorrect to say that the son os a void marriage, thoguh legitimate by virtue of the provisions contained in s.16 of the Hindu Marriage Act, can claim a share in the property which belongs to a coparcenary of which his father is a memebr.
17. The learned single Judge who decided Raghunath dissented from hannamata partly, at any rate., on the basis of what he regarded as the authority in Laxmibai v. Limbabai, . Laxmibai did not hold that childern born of a void marriage are entitled to a share in the property of their father. The facts disclosed that the claim was made for succession to the property of the parents of the children born for of a void marriage. Masodkar, J. held for reasons, mentioned in that judgement in the light ofthe provision contained in s. 16, Hindu Marraige Act, thatt such children were entiled to succeed to the property of their father under S. 8, Hindu Succession Act, during the lifetime of the father. To tht extent Raghunath is wrongly decidied and is overruled. Since Dadoo Atmaram does not refer to s. 16, Hindu Marriage Act, ahd since Laxmibai does not refer to S. 3(1)(j), Hindu Succession Act, we have to consider the position of a child of a void marraiage in thelight of both these provisions.
18. We have mentioned earlier that legitimacy had been bestwed upon the children born of a marraige which was declared to be void by a decree of nullity before the amendment in 1976. The amendment of 1976 extended this legitimacy to the children born of a maraige which is void, whether it is so declared or not by a decree of nullity. Section 16(3), Hindu Marriage Act, by law confers a right upon such illegitimate children in the property of their parents . Even if it is regard that this is a legal fiction, the consequences of that legal fiction mustbe extended to htier logical end. After .... The provision of both the Hindu Marriage Act and the Hindu Succession Act it would be notice thatt if the right attaching to the legitimacy created by s 16(3), Hindu Marriage Act , is not edtended to included the right to the property unde the Hindu Succession Act, S 16(3) will make to no sense. In construing the scope of a lergal fiction it is not only proper but even necessary to assume all those facts on which alone the fiction can operate. Referring to the following observations of Lord Asquith in East End Dwelling co, Ltd. Finisburry Borough council, 1952, AC 109 at p. 132 the Supreme Court in 1-T, Commr. V. Teja singh , , explained the scope of a legal ficiton:-
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited form doing so, also imagine as ral the consequences and incidens which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. Thestatue says that you must imagine a certain state of affairs; it does not say that having done so, you must cause of or permit te inevitable corollaries of that state of affirs".
19. In B.P. Andre v. supdt., Central Jail, Tihar, , the Supreme Court furhter pointed out:
"It is now well settled law that where a legal ficiton is created, full effect must be given toit and it should be carried to its logical conclusion."
20. Mr. Agrwal, however, contends that he amendament to s. 16 , Hindu Marriage Act, was int eh year 1976 and even prior therto the Hindu Succession Act had cone into force. The Parliament did not, according to him, use the words "notwithstanding anything contined in any other law". He, therefore, contended that te legitimacy which as been bestwed upon the children of a void marriage udner s. 16 , Hindu Marriage Act wold not extend to the situations arising under the Hindu Succession Act, s. 3(1)(j) of that Act alone can be looked into, .In other words according Hindu Marriage Act, cannot be engrafted the definition contained in s. 3(1)(j), Hindu Succession Act. In our opinion, this submision is misplaced. We have already held above thathte legitimacy conferred by s. 16, Hindu Marriage Act, ws there even prior to the 1976 amendment. Only it iws extended to some more person. The Hindu Succession Act is no doubt an Act which is later tot he Hindu marrage Act. One miust proceed on the assumption that the parliament was aware of the proviiosn contained in S. 16, Hindu Marraige Act an earlier law and despite this it did not exclude the children who were made legitimate under S. 16, Hindu Marraige Act, fromt he class of legitimate heris udne the Hindu Succession Act. In fact one would asume that if the parliament wanted to exclude the "legitimate children:" of s. 16, Hindu Marriage Act, fromt he provisions of the Hindu Succession Act it would have definitely provided for toe that effect. The legitimacy, therefore, created by s. 16. Hindu Marraige Act., must berad into as a paret of the definitiaon in s. 3(1)(j), Hindu Succession Act. It would be unreasonable to suppose that S. 3(1)(j) woud nullity the effect of a provision contained in an earlier Act when either by express words or by necessary implicaiton it does not do so.
21. That apart , both the Hindu Marraige Act and the Hindu succession Act belong to a family of lwas relating to the same subject. We take it as setteld rule of interpretaion that if two legilstion, which are pari materia, for,m cognate legislation, they from one Code. They, threfore, should be taekn form one Code. They, therefore, should be taekn as fformig one system and iterpreting and enforcing each oter. This rule of interpretsion has received the approval of the supreme court in several decisons (See , for example, state of Assam v. D.P barua, ). Thogu the Supreme Court in Shah & Co, v. State of Maharastra, AIR 1967 SC 1877, found, while examining the provision of the Bombay Rents, Hotel and Lodging House Rates Control Act and the Bombay Land Requisitions Act, that they did not belong to the same authorities in para 21 of the said Judgement, which help in finding out when two statutes are to be considered as pari materia. Suthrland, in "Statutory construction", 3rd Edition, vol, 2 at page 535, states:
"Statutes are considered to be in pari materia to pertain to the same subject matter to pertain to he saem subject matter when they relate too the same person or thing, or to the same class of persons of things or have the same purpose of object".
22. The same author has also state:
"To ne in pari materia, statues need not have een enacted simulatnaeously or refer to one another".
23. The following observations by the same author is also helpful in understanding the two statues which the are under consideration:-
"When the legislature enacats a provisions, it has before it all the provisons relating to the same sunbject matter which it enacts at that time, whether in thesaeme statue or in a separate Act, It is evident that it has in mind the proviiosn of a prior act to which t refers, the whether it pharases the later Act as an amendment or an independent Act. Expewrience indicates that a legistature does out deliberately enact inconsistent provisions when it is cognizant the of them both, without expressly recognizing the inconsidtency".
24. The Hindu Code as such unfortunately did not come to exist at the same time, but nevertheless the intention of the Parlaiment to legilate in respect of the several matters which would have been otherwise the subject of a Hindu Code is manifest int he fact that within a short time one after another different statues were enacted. They deal with the same class of persons, namelyl the Hindus; they deal witht eh personal also of the said class; they deal also with the subject which have interrlations with each other. Marraige, children , rights of the children and ther memebrs of the family are all deallt with in these cognate law, of which the Hindu Marriage Act and the Hindu Succession Act are two. It is thereore, perfectly, legitimate to import the meanin of legitrimacy contained in S. 16, Hindu Marraige At, into the provisions of the Hindu Succession Act; especially when in the latter Act there is no exclusion of such legitimacy while interpreting the provisions of the Hindu Succession Act. We must,. Therefore, hold that children born of a void marriage and hwo are a regard as legitiamte by virture of the provisions contained in s. 16, Hindu Marraige act, are entitled to the rights conferred upon them the by s 16(3)INDU MARRIAGE ACT, 1955~^ irrespective of the apparent restricted definition of s. 3(1)(j), Hindu Succession Act.
25. We must , however, also bear in mnd tat legal fiction if crated for some diefintie ppurpose has to be limited for that purpsoe and should not be extended beyond the legislaticve fild . (See Bengal Immunity Co. v State of Bihar ). Similar is the effect of the judgement of the Supreme Court in 1-T Commr. Gujarat v. Vadilal, . After examinign the provisions of both the Hindu Marriage Act and the Hindu Succession act, we have held above that the children of a void marriage their parents. Sicne no child acquired a right int he property of its parents by birht, these rights can be exercised only by of way succession to the property . For that purpose they are to be treated as bier in ?class I of the Schedule to the Hindu Succession Act and they are entitled to succeed in accordance with the provision contained in s. 8, Hindu Succession Act.
26. We now turn to the question of the right of a wife whose marriage isfound be void under the proviosn of the Hindu Marriage Act. As mentioned of the for the purpose of brevity and conveience, and not meaning anything by way of a morlal judgement , we refer to ther in this judgemetn as the "illegitmate wife - a pharse which has been used by Maodkar,j. held in this judgement , we refer to her in this judgement as the "illgitimate wife" - in a pharase wich has been used by maosdkar , J. Rajesbai case . Maosdkar hj held int ey firdt palce that female whose maraige is void de jure and surviving the death ofthe husband, would not be covered by the tern 'widow' either in Class I of the Schedurle or anywhere such referenece occurs. Thoguh noticing that the provisions of the Hindu Adoptions and Maintenance Act could not be treated as exhaustive on matters for awrding maintenace the laerned Judge held that the right to maintenance of such a wife, namely the ileedgitmate wife, is recognised by S. 25, Hindu Marriage Act. Such a right could beworked out in any civil proceedings . While so holding the leanred Judge necessarily made a reference to Govendrao. Anandibai, . In Govindrao, Kanial, J held that s. 25(1), Hindu Marriaige Act, confers a discretion upon the Court exercising jurisdiction under that ACt at the time of passing any decree or thereafter on application made to it to order the husband to pay maintenance to the wife. Kana, J. exprssly rejuected the contention advanced before him that S. 25, Hindu Marriage Act, meraly provided a remedy and did not confer any right. It was held therein that the power which has been conferred upon the Court to award maintenancy created a correspondsing right in the wife to get maintenance, provided the condition laid down for the grant of the same were satisfied. We are in agreement with this law laid down in Govindrao and followed by Rajesbai We are also in agreemtn with Masodkar, J. when he ahs held that the right recognised by S. 25, Hindu Marriage Act,can be worked out in any civil proceeding.
27. We have examined the other observations to be found in Rajesbai. We are not satisfied that the support which Masodkar, J. derived from Sushilabai v. Rancharan, 1976 Mah Lj 82 is correct. The facts in Sushilabai's case disclose that the petitionr befreo the HIgh Court had filed a suit for partition and separate possession of her share in the joint family property aganst the respondent Ramcharan. She had a right of maintenace in the propety apart form S 25 Hindu Marriage Act. Before the partition could actually be effected and duirng the pendency of the suit it was held tha she had a ritht to interim maintenance. In so holdign Dharmadhikari, J. sought support from the provision contained in S. 151, Civil P.C. The inherent power of te High Court under S. 151, Civil P.C. permitted it during the pendency of a proceeding to give inerim relief which was a part of larger relief which could be given at the conclusoion of the proceeding i/.. In our opinion the inherent power of Court under s. 151 of the Code is not intended to enable a Court to confer a right upon a party. The distinction between the procedural law and the substantial law must be borne in mind,. The proviiosn of S, 151 of the Code do not invest a Cioyurt with legislative power, but only ebnable a Court to pass such interim orders to do justice between the parties. The inherent power of a Court are in addition to and cmoplementary of the powers expressly conferred upon it by other provision of the Civil Procedure Code. They are not intended to enable a Court to creatre rights in the parties. But they are meant to enable the Court to pass such orders for the ends of justices as may be necessary considering the rights which are conferred upon the parties by substantive law. We are not persuaded that judical activism permits a Court to do what in effect is legislation. Though this part of the reasoning in Rajeshbai, does not find favour with us, the legal position which was originally found in Govindrao, and affirmed in Rajeshbai finds acceptance with us. We are, therefore, of the opinion that defendant 2, who id the wife of a void marriage is entitled to maintenance under s. 25, Hindu Marriage ACt, a right which could be enforced in any civil proceeding such as the one in the present case. Obviously this right can be enforced only against the property of her husband.
28. We now summarise the propositions of law emergign from the discussion made above:-
In regard to a child of a void marriage:
a child of a marraige whichis void under the provision of Hindu Marriage Act, whether a decree of nulity is passed or not, is a legitimate child (S. 16(1), Hindu Marriage Act);
Such a child does not acquire right to property which a legitimate child would, but the legitimacy confers upon him right to property of his parents. (S. 16(3), Hindu Marriage ACt);
The property to which such a child can lay claim must be the separate property of the parents and not the coparacenary property in which the parent has a share. Contrary vies in Raghunath v. Nana (1985) 87 Bom LR 488 is not the correct law;
Since no child , whether legitimate of otherwise, acquires right by birth in the separaty of the its parent, a child of a void marriage can only succeed tot he property of its parant in accordance with the provisions of S. 8 of or S. 15 Hindu Succession Act;
29. A child of a void marriage is related to its parent within the meaning of S. 3(1)(j), Hindu Succession Act because of the provision of S. 16, Hindu Marriage Act; proviso who to S. 3(1) must be confined to those children who are not clothed with legitimacy under S. 16. Hindu marriage Act.
30. In regard to a woman whose marriage is void for declard void under the marriage is void is or declared to be void, a right of maintenance against her husband
31. This right of maintenance can be enforced by her her not only in proceedings under s. 235, Hindu Marraige aCt but, also in any other proceedings where the validity of her marriage is determined;
32. This right canbe enforced by her not only during the lifetime of her husband but also after his death against the property of her husband after his death;
33. Of course, this right of maintenance is availane only during her lifetime and ceases if she remarriess.
34. On the facts of this case, the award of maintenance to defendatn 2 is, therefore, upheld. The denial of a share to defendant 1 in the property of deceased Tukaram is set aside. We hold tha defendatn is entitiled to a share in the property of deceased Tukaram as ehri in Class I of the SChedule tothe Hindu Sucession Act. Admittedly the properties of Tukaram in which defendant 1 is entitled to aa share and in respect of wihc defendant 2 its entitled to enforce of her claim for maintenace are in possession of the defendant. The amount of maintenance to defendant 2 cannot become payable till the possession is obtained by the plaintiff till and be created on the said properties after partition among the plaintiff and defendat 1 will be to the extent of 20% on the share of each person who takes it after partition.
35. In the result, we proceed to substitute the following decree in place of the decree passed by the trial Court:-
The suit of the plaintiffs is hereby decreed as mentioned hereinafter , but without anyorder as to costs.
36. It is hereby declared that defendant 1 is a legal heir of deceased Tukaram Jairam Patil and is a heri in Class 1 of the Scehedule tot he hindu Succession Act.
37. It is hereby declared that defendant 2 is entitled to maintenace during her lifetime till she remaries out of the properties of deceased Tukaram Jairam Patil.
(4 ) Each of the plaintiff and defendant is entitled to 1|5th share int ehsaid properties. The properties shall be partitioned accordigly and possession of the share shall be given to the plaintiff and defendant 1.
38. The second defendant is entitled to maintenance in the sum of Rs. 2,400|- per year form the date on which the plaintiff and defendant 1 obtain possession of the properties according to their share. The second defendatn shall be entitled to such maintenance for there her life as long as she remains unmarried.
39. There shall be a charge for a sum of Rs. 480 per year on the properties allotted to each to the plaintiff and defendant 1 who will b e liable for maintenance to the extent of one-fifth of the amount of maintenance.
40. Enquiry into the future mesne pfofits will be made under O.XX, R. 18 of the Code for the perioed form the date of the suit till the delivery of possession of the property.
41. In respect of the agricultural properties the decree shall be sebt the to Collector for partition in accordance with S. 54 of the code.
42. There will be no order as to costs in this appeal.
43. Ordered accordingly.