MANU/MP/0165/2013

Equivalent Citation : AIR 2013 MP 134

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

Second Appeal No. 846/1997

Decided On: 21.03.2013

Appellants: Babulal and Another

Vs.
Respondent: Natthibai and Another

Hon'ble Judges/Coram:
Ravi Shankar Jha, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Shri T.S. Ruprah, Learned Senior Counsel and Shri Harpreet
Ruprah

For Respondents/Defendant: Shri V.K. Jain, Learned Counsel

Subject: Property

Subject: Family

Acts/Rules/Orders:
Hindu Marriage Act, 1955 - Section 11, Hindu Marriage Act, 1955 - Section 16, Hindu Marriage
Act, 1955 - Section 16(1), Hindu Marriage Act, 1955 - Section 5

Cases Referred:
Reshamlal Baswan vs. Balwant Singh Jwalasingh Punjabi and Ors. MANU/MP/0169/1988; M.
Muthayya vs. Kamu alias Kamala Ammal and Ors. MANU/TN/0367/1980

Disposition:
Appeal Allowed

JUDGMENT

Ravi Shankar Jha, J.

1. This appeal has been filed by the appellants/defendants being aggrieved by the judgment
and decree dated 23-7-1997 passed by the 2nd Additional District Judge, Sagar (Camp Khuai),
in C.A. No. 11-A/1997, wherein the judgment and decree dated 29-11-1990 passed by the Civil
Judge Class-I, Khurai, District Sagar, in C.S. No. 72-A/1986 has been partly set aside and the
claim in the suit for partition to the extent of the rights claimed by Bhagwan Singh, respondent
No. 2, has been decreed. The brief facts leading to the filing of the present appeal are that
Babulal, the appellant/defendant No. 1 was the joint owner of property situated in Khurai
alongwith his brother Damrulal alias Damodar. On the death of Damrulal's first wife he had
brought the respondent/plaintiff No. 1 Natthibai to live with him. It was alleged in the plaint
that out of cohabitation between Damrulal and Natthibai the respondent/plaintiff No. 2,
Bhagwan Singh has born. On the basis of the aforesaid relationship between the parties the
respondents filed a suit for partition and possession in respect of the property situated in
Khurai, as mentioned and identified in the plaint map.

2. The said suit was dismissed by the trial Court by order dated 29-11-1990 by holding that

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plaintiff No. 1 was not married to Damrulal nor was Bhagwan Singh born from their wedlock
and, therefore, they had no right to claim partition in the suit property. On an appeal being filed
by the respondent/plaintiffs the first appellate Court by the impugned judgment and decree
dated 23-7-1997 has decreed the claim, as far as the respondent No. 2, Bhagwan Singh is
concerned, holding him to be the legitimate child of Damrulal and has granted partition to the
extent of half of the property.

3. The appellant/plaintiffs being aggrieved, have filed the present appeal which has been
admitted by this Court by order dated 24-2-1998 on the following substantial questions of law:-

(i) Whether, having found in paragraph 22 of the judgment that Natthibai was not a
legally wedded wife of Damru alias Damrulal, the Court below could have granted to
the respondent No. 2 a share in the suit property to the extent of one-half?

(ii) Whether the lower appellate Court was right in applying Section 16 of the Hindu
Marriage Act to illegitimate child, who was not proved to have been born on account
of void or voidable marriage?

4. The learned senior counsel appearing for the appellant/defendants submits that there is a
concurrent finding by both the Courts below that Natthibai was not the married wife of Damrulal
nor was there long cohabitation between them. It is submitted that in view of the aforesaid
concurrent finding of fact the first appellate Court has erred in law in applying the provisions of
Section 16 of the Hindu Marriage Act, 1955 (hereinafter referred to as the "Act") to decree the
claim made by the respondent No. 2 as in the absence of a marriage no right can be claimed by
an illegitimate child, even if it is assumed that the child is born out of the physical relationship
between the two persons involved.

5. The learned senior counsel, in support of the aforesaid submissions, has taken this Court
through the provisions of Section 16 of the Act as well as a decision of this Court rendered in
the case of Reshamlal Baswan vs. Balwant Singh Jwalasingh Punjabi, reported in
MANU/MP/0169/1988 : 1994 MPLJ 446.

6. To examine the substantial questions of law framed by this Court in detail this Court has
gone through the entire record of the case.

7. From a perusal of the plaint itself it is apparent that the respondents have not stated
anything about a regular legitimate marriage between Damrulal and Natthibai. The plaint itself
states that Natthibai was originally married to one Nand Kishore but she left him as they could
not get along together after "Chhod Chhutti" and, thereafter, she came to Khurai to live with
Damrulal. The trial Court, after analyzing the evidence of the witnesses on record, has recorded
a finding in paragraph 13 of its judgment to the effect that the plaintiff has failed to establish
and prove that Natthibai was married to Damrulal in accordance with the customs prevailing in
the society or that any ceremony was conducted in that regard. The same finding has been
recorded by the appellate Court in paragraph 22 of the impugned judgment. It is also
undisputed that this concurrent finding has not been assailed by the respondents. It is,
therefore, apparent that there is concurrent finding of fact to the effect that no marriage or
ceremony whatsoever was ever held to solemnize the marriage between Damrulal and Natthibai
either in accordance with law or in accordance with the custom prevailing in the society and in
the absence of the fact of marriage the question or the issue of the marriage being void or
voidable or being in contravention of provisions of Section 11 of the Act does not arise. As the
factum of marriage itself has not been established, no right accrues to the respondent No. 2
even if he is born from the physical relationship of Damrulal and Natthibai nor does he acquire
any rights under Section 16 of the Act.

8. This Court in the case of Reshamlal Baswan (supra) has answered a similar question involved
therein in the following terms:-

4. Marriage Laws Amendment Act, 1976 provided legitimacy to children of a

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 marriage hit by Section 11 of Hindu Marriage Act. Section 11 provides a procedure
for getting a marriage declared void if it contravenes one of the conditions of
Section 5 of the said Act. The conditions under which a marriage is said to be void
are those mentioned in clauses (i), (iv) and (v) of Section 5 of the said Act.
Marriage between parties having a spouse living at the time of marriage is hit by
this provision. This provision has been interpreted to mean that there must be a
marriage, which would be hit by the provisions of this Act and would not cover a
relationship resulting from any other arrangement than the marriage. That is the
reason why it has been held in M. Muthayya v. Kamu and Ors.,
MANU/TN/0367/1980 : AIR 1981 NOC 172, that in those cases where there is no
proof of solemnisation of marriage, the provision in Section 16 is not attracted. The
two courts, in the instant case have found that there was no marriage of any type
between respondent Jhunjhibai and the deceased Baswan and hence, it will have to
be held that even if Baswan had died after 1976, the benefit of Section 16 of Hindu
Marriage Act would not have been available to the appellant. That appears to be the
reason why the learned counsel for the appellant did not seriously press the
question as framed by this Court.

Mayne's Hindu Law & Usage, 15th Edition, while discussing the provisions of Section 16 of the
Act has stated as under:-

Section 16 of the Act comes into operation only in a case in which a marriage is in
fact proved to have taken place between the persons which may be null and void as
per the provisions of the Act. Once the factum of marriage is not proved, section 16
(1) is not attracted and the children born out of such relationship cannot get the
benefit of section 16(1) of the Act.

9. In view of the aforesaid provisions of law and the facts and circumstances of this case, even
if it is held that respondent No. 2 Bhagwan Singh was born out of the physical relationship
between Damrulal and Natthibai, respondent No. 1, he does not acquire any rights under
Section 16 of the Act on account of the fact that there is no proof of marriage, customary or
otherwise, between Damrulal and Natthibai. The substantial questions of law framed by this
Court are accordingly answered in favour of the appellants/defendants.

10. As a consequence of the above, I am of the considered opinion that in view of the clear
provisions of Section 16 of the Act and the law as laid down by this Court in the case of
Reshamlal Baswan (supra), the first appellate Court has erred in law in decreeing the suit to the
extent of the claim of respondent/plaintiff No. 2, Bhagwan Singh and, therefore, the impugned
judgment and decree dated 23-7-1997 passed by the lower appellate Court is accordingly set
aside. The appeal filed by the appellants/defendants stands allowed accordingly.

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