Holding

The amended Section 16 of the Hindu Marriage Act, 1955 is constitutionally valid and confers legitimacy on children of void marriages, making the appellants legitimate heirs entitled to inherit their father's property.

Summary

Raman Nair contracted a second marriage while his first wife was alive, violating Section 5 of the Madras Marumakkattayam Act, 1932, which rendered the second marriage void. After the Act was repealed by the Kerala Joint Hindu Family System (Abolition) Act, 1975, the appellants claimed that the repeal validated the second marriage and that, under the amended Section 16 of the Hindu Marriage Act, 1955, they were legitimate heirs entitled to inherit their father's property. The Supreme Court held that the repeal did not revive the void marriage and that the amendment to Section 16 removed the constitutional defect, conferring legitimacy on children of void marriages irrespective of when the marriage occurred. Consequently, the children of the second marriage were deemed legitimate and entitled to a share in Raman Nair's estate. The Court allowed the appeals, set aside the trial court's dismissal, and decreed the partition suit in favour of the appellants.

Issues considered

The effect of the repeal of the Madras Marumakkattayam Act, 1932 by the Kerala Joint Hindu Family System (Abolition) Act, 1975 on the validity of a second marriage contracted before the repeal.
Whether children born of a void second marriage entered into before the Hindu Marriage Act, 1955 are entitled to legitimacy and inheritance under Section 16, as amended.
Whether the original (pre‑amendment) wording of Section 16 violated Article 14 of the Constitution and if the 1976 amendment cured that defect.
Whether the amendment to Section 16 applies retrospectively to children born before the amendment.
Whether the appellants are legal heirs of Raman Nair for purposes of partition of his property.

Legislation cited

Hindu Marriage Act, 1955s. 11, s. 12, s. 16, s. 5
Hindu Marriage (Amendment) Act, 1976s. 16
Kerala Interpretation and General Clauses Act, 1925s. 4
Kerala Joint Hindu Family System (Abolition) Act, 1975s. 7(2)
Madras Marumakkattayam Act, 1932s. 5

Subjects

Hindu lawvoid marriagelegitimacySection 16Article 14repealMarumakkattayaminheritancelegal fictionconstitutional validity

Judgment

SMT. PARAYANKANDIYAL ERAVATH KANAPRAVAN A
KALLIANI AMMA AND ORS.
v.
K. DEVI AND ORS.

APRIL 26, 1996
B
[KULDIP SINGH AND S. SAGHIR AHMAD, JJ.]

Hindu law:

Hi11du Maniage Act, 1955: Section 16.
c
Void maniage-Otildren--Legitimacy of-Second marriage-Co11tract
of--Duri11g subsistence of first marriage-Prior to commencement of

- Act-Void under S. 5 of Madras Marumakkattayam Act, 1932 then in
force-Held : Children bom of void second ma77iage e11titled to inherit share
in the prope1ties of their parents by operatio11 of amended S. 16. D
Section 16--Amendment-Legitimacy-Nature of-Pre-amended S.
16--Classified illegitimate children into two groups-Those bom of void
maniages contracted before Act-And those bon1 of void nzarriages con-
tracted after Act came into force-Held: Section 16 violative of Miele 14 of
the Constitutioh. E
Section 16--Amendment of-Position thereafta-Amendment removed
the mischief and also de/inked S. 11 from S. 16--Hence, amended S. 16 was
constitutionally valid-ft enacted legal fiction whereby illegitimate children
were deemed legitimate-Thereby entitling them to succeed to prope11ies of
their parents. F
Madras Marumakkattayam Act, 1932:

Section 5---Polygamy-Void unde1~Act repealed by S. 7(2) of Kera/a
Joint Family System (Abolition) Act, 1975---Effect of-Contract of second
marriage during lifetime of first wife-Prohibition under S. 5 would G
.t operate-Such second maniage would not be affected by the repeal by virtue
of S. 4 of Kera/a Interpretation a11d General Clauses Act, 1925---Kerala Joint
Hindu Family Sys{em (Abolition) Act, 1975, S. 7(2}-Kerala Interpretation
and General Clauses Act, 1925, S. 4.

Constitution of India, 1950 : Anicle 14 : H
1
2 SUPREME COURT REPORTS. [1996] SUPP. 2 S.C.R.

A Statute-Constitutionality of-Presumption in favour of-Burden of
proof is on person challenging constitutionali~To show arbitrary dis-
crimination between persons siniilarly circumstanced--Presuniption-Dis-
·-
placing of-By showing discrimination was apparent and manifest-Duty of
Court to look to the statute as a whole to see if classification was valid having
ne.i.us with object sought to be achieved.
B
Interpretation of Statutes :

Interpretation-Subsidiary rules of-Legal fiction-Purpose of-Parties
between whom it was to operate-To be ascmained by Court to give full effect
C to legislative intent and to ca1ry the purpoSe to its logical end.

Mischief Rule-Language having more than one meaning-Ap-
plicability of-Rule in Heydon's case-When and how lo be invokecf--Non-

D
•
obstanle clause-Operation and interpretation of

RN contracted a second marriage with Appellant No. 1 during the
lifetime of his first wife who was the mother of Respondents 1 to 9, in
-
contravention of the prohibition of such a second marriage under Section
5 of Madras Marumakkattayam Act, 1932 which was then in force. The
question before this Court was whether Appellants 2 to 6, who were the
children born of the second marriage, would inherit any share in the
E
properties l•ft behind by RN after his death.

Allowing the appeal, this Court

HELD : 1.1. Section 7(2) of Kerala Joint Hindu Family System
f (Abolition) Act, 1975 by which the Madras Marumakkattayam Act, 1932
was repealed does not indicate any intention contrary to the provisions
contained in Kerala Interpretation and General Clause Act, 1925 which,
will apply with full vigour on the principle that whenever there is a repeal
of an~ enactment, the consequences indicated in Section 4 would follow,
unless there \Vas any saving clause in the repealing enactment or any other
G intention was expressed therein. In the case of a simple repeal, there is
hardly any room for the expression of a contrary view. Repeal in the instant
case is a ca>e of repeal simplicitor. Hence, in view of section 4(b) of Kerala
Interpretation and General Clauses Act, the previous operation of Madras
Act will not be affected by the repeal nor will the repeal affect anything
lI duly done or suffered thereunder. So also, a liability incurred under that
P.E.K.KALLIANIAMMA v. K DEVI 3

Act will remain unaffe(ted and will not be obliterated by the repeal as A
indicated in Section 4(c). RN had contracted a second marriage, in the
lifetime of .his first \life, when Madras Act was in force, which prohibited
a second marriage and, therefore, the consequences indicated in the Act
that such a marriage would be void would not be affected nor will the
previous operation of the Act be affected by the repeal_ of that Act. The
B
repeal does not mean that Madras Act never existed on the Statute Book
nor \\ill the repeal have the effect of validating RN's second marriage, if it
was already a void marriage under that Act. [17-H, 18-A-D]

Balakiislma Menon v. Asst. Controller of Estate Duty, AIR (1971) SC
2390; Venugopala. Ravi Venna v. U11io11 of !11dia, AIR (1969) SC 1094; C
Achuttan Nair v. C. Amma, AIR (1966) SC 411 and Padmavathy Amma v.
Ammuni Panicker, AIR (1995) SC 2154, relied on.

Bhaurao v. State of Maharashtra, AIR (1965) SC 1564 and Kochwmi
v. Kuttanwmi, AIR (1948) PC 47, referred to.
D
1.2. Since.Jhe Rule of Legitimacy under Section 16 of Hindu Mar-
riage Act, 1955 (HMA) was made dependent upon the marriage (void or
voidable) being annulled by a decree of annulment, the children born of
such marriage, would continue to be illegitimate if the decree of annulment
was not passed, which, incidentally, would always be the case if the parties
E
did not approach the Court. The other result was that the illegitimate
children came to be divided in two groups; those born of marriage held
prior to the Act and those born of marriage after the Act. There was no
distinction between these two groups of illegitimate children, but they came
to suffer hostile legislative discrimination on account of the language
employed therein. Indeed, language is an imperfect instrument for the F
expression of human thought. [27-E-G]

1.3. The object of Section 16. HMA was to protect legitimacy of
children born of void or voidable marriages. Jn leaving out oiie grot.ip of
illegitimate children from being treated as legitimate, there did not appear G
to be any nexus between the object sought to be achieved by Section 16,
HMA and the classification made in respect of illegitimate children
similarly situate or circumstanced. Section 16, HMA was earlier linked
\\ith Sections 11 and 12, HMA. On account of the language employed in
unamended Section 16 and its linkage with Sections 11 and 12, the
provisions had the effect of dividing and classifying the illegitimate H
4 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A children into two groups without there being any nexus in the statutory
provisions and the object sought to be achieved thereby. [27-H, 32-F-G] ,._
State v. Narsu Appa Mali, ILR (1951) Bombay 775; S1i11ivasa Iyer v.
Saraswathi Amma/, ILR (1953) Madras 78 and G. Sambireddy v. G. Jayam-
ma, AIR (1972) A.P. 156 referred to.
B
1.4. Legitimacy i.s a matter of .status. Illegithnate children, on the
contrary, are children as are not born either in lawful wedlock, or nithin
a co1npetent time after it.s deter1nination. It is on account of marriage,
valid or void, that children are classified as legithuate or illegitin1ate. That
C is to say, the social status of children is determined by the act of their
•
parents. If they have entered into a valid marriage, the children are
legititnate; but if the parents com1nit a folly, as a result of \Vhich a child
is conceived, such child \Vho con1es into existence as an innocent human
baby is labelled as illegititnate. Realising this situation, Parliament made
a la\\' \\ hich protected the legitimacy of such innocent children. [26-E, G-H]
1
•
D
Amplhill Peerage Case, (1976) "\II ER 411 and Salemi v. Mini.rter for
Immigration and Ethnic AffaiJO-, (1977) 14 ALR I (7), referred to. ' .
"Conunenta1ies on the Hindu .~1arn·age Act 1955 by K.P. Saksena;
1
11

E "P1i11cip/es of Hindu Law· by Jogendra Chunder Ghose, 1903 Edn. and
"Hindu Law of Maniage St1idhana", 4th. Edn. (reprinted in India in 1984),
referred to.

2.1. Whenever an enactment is attacked on the ground of discrimina-
tion, it IJecomes the duty of the court to look to the legislation as a \\.'hole
F and to find out \\·hy class legi~Iation \\'as introduced and \Vhat \\'as the nexus
between the classification and the object sought to be achieved by it. There
is always a presumption that an Act made by the Parliament or the State
Legislature is valid; so also there is a s1rong presumption in favour of the
validity of legislative classification. Jt is for tho~e '"ho challenge thl! Act as
G unconstitutional to sho\V and prove beyond all doubts that the legislature
arlJitrarily discriminated bet\veen different person:s sin1ilarly cir·
cun1stanced. This presun1ption, hon'ever, can be displaced by sho\ving that
the discrimination was so apparent and manifest that any proof was hardly
required. Section 16, as originally enacted, fell under this category. To the
extent it discriminated between two groups of illegitimate children in the
H matter of conferment of status of legitin1acy, it \\'as violative of A.rticle 14.
P.E.K KALLIANI AMMA v. K DEVI 5

The vice or the mischief from which unamended Section 16 suffered has A
been removed or not is the next concern of this Court. [18-G, 30-E-G]

2.2. In order to give full effect to what was intended to be achieved
by enacting Section 16, the Parliament intervened and amended Section
16. The words "notwithstanding that a marriage is null and void under
Section 11" employed in Section 16(1) indicate undoubtedly the following: B

(a) Section 16(1) stands delinked from Section 11.

(b) Provisions of Section 16(1) which intend to confer legitimacy on
children born of void marriages will operate with full vigour in spite of
Section 11 which nullifies only those marriages which are held after the c
enforcement of the Act and in the performance of which Section 5 is
contavened.

(c) Benefit of legitimacy has been conferred upon the children born
either before or after the date on which Section 16(1) was amended. D
(d) Mischief or the vice which was the basis of unconstitutionality of
unamended Section 16 has been effectively removed by amendment.

(e) Section 16(1) now stands on its own strength and operates
independently of other sections with the result that it is constitutionally E
valid as it does not discriminate between illegitimate children similarly
circumstanced and classifies them as one group for conferment of
legitimacy. Section 16, in its present form, is, therefore, not ultra vires the
constitution. [33-C-F]

KP. Ve1ghese v.I11come-tax Officer, Emakulam andA11r., 131ITR597; F
Bengal l111mu11ity Co. Ltd. v. State of Bihm; AIR (1955) SC 661; Goodyear
I11dia Ltd. v. State of Hmyana, AIR (1990) SC 781; C.I. T., M.P. & Bhopal v.
Sodra Devi, AIR (1857) SC 832; Union of India v. G.M. Kokil, [1984] Supp.
SCC 196; Chandavarkar Sita Ratna Rao v. Ashalata S. Gwnam, [1986] 4
SCC 447 (477); R.S. Ragunath v. State of Kamataka, [1992] 1 SCC 335; G
Heydon's case (1584) 3 Co. Rep 7a;Mayfair Property Company, (1898) 2 Ch
28 (CA); Eastma11 Photographic Materials Company Ltd. v. Comptroller-
Ge11eral of Pate11ts, Designs and Trade-Marks, (1898) AC 571, 576 (HL) and
Mu11se/l v. O/i11S, (1975) 1 All ER 16 (HL) p-29, referred to.

T. Ramayamma/ v. T. Mathwnmal, AIR (1974) Mad. 321, approved. H
6 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A "P1inciples of Statut01y lnte1pretation" By G.P. Singh, referred to.

3.1. Section lG contains a legal fiction. It is by a rule offtcto jwis that
the legislature has provided that children, though illegitimate, shall, never-
theless, be treated as legitimate nornithstanding that the marriage was
void or voidable. [33-H)
B •
3.2. In view of legal fiction contained in Section 16, the illegitimate
children, for all practical purposes, including succession to the properties
of their parents, have to be treated as legitimate. They cannot, however,
succeed to the properties of any other relation on the basis of this rule,
C which in its operation, is limited to the properties of the parents. [34-E]

3.3. When an Act of Parliament or a State Legislature provides that
something shall be deemed to exist of some status shall be deemed to have
been acquired, which not have been so acquired or in existence but for the
enactment, the Court is bound to ascertain the purpose for which the
D fiction was created and the parties between whom the fiction was to
operation, so that full effect may be given to the intention of the legislature
and the purpose may be carried to its logical conclusion. [34-A-BJ

Mis. J K Cotton Spg. & Wvg. Mills Ltd. v. Union of India, AIR (1988)
SC 191, American Home Products Corporation v. Mac Laboratories, [1986)
E 1 SCC 465 and M. Venugopal v. Divisional Manager, LIC, [1994) 2 SCC
323, relied on.

East E11d Dwellings Co. Ltd. v. Fi11sbury Borough Council, (1952) AC
109 B, referred to.

F 4. Appellants 2 to 6 were born prior to the date on which amend-
ments were introduced in Section 16(1), and consequently they would,
notwithstanding that the marriage between their parents had taken place
at a time when thert was a legislative prohibition on the second marriage,
to be treated as legitimate, and would, therefore, inherit the properties of
G their father, RN, under Section 16(3) of the Act. [34-F-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5473-75
of 1995.

From the Judgment and Order dated 22.6.89 of the Kerala High
H Court in AS. Nos. 68 and 70 of 1980 and 5 of 1981.
P.E.K. KALLIANI AMMA v. K. DEVI [S. SAGHIR AHMAD, J.] 7

P.S. Poti and K.R. Nambiar for the Appellants. A
T.L. Viswantha Iyer, Ms. Pushpa Rajan and K.B.S. Rajan for the
Respondents.

The Judgment of the Court was delivered by
B
S. SAGHIR AHMAD, J. "A million million spermatozoa
All of them alive :

Out of their cataclysm but one poor
Noah
Dare hope to survive. 'C
And aruong that billion minus one
Might have chanced to be
Shakespeare, another Newton, a new Donne.
But the one \vas me."

So said Aldous Huxley, perhaps, in desperation and despondency. D
And, that is how a person would feel on being bastardized by a court
verdict, disentitling him from inheriting the properties left by his father.
This is the theme of the present judgment which we are required to write
in view of the following facts :

2. Parayankandiyil Kanhirakunnath Kurungodan Raman Nair was the E
proud father of 14 children from two wives, the first being Ammu Amma, who
is the mother of the respondents 1 to 9, and the second being a lady of equally
long narue, naruely, Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma
(appellant No. 1), who is the mother of appellants 2 to 6. He had a flair for
two; two wives, two sets of children, t~o sets of properties, in two different
States. P.K.K. Raman Nair died on 9th January, 1975, and since he left behind
F
considerable movable and immovable properties in the States of Kerala and
'Taruil Nadu, litigation WdS the usual and destined calamity to befall the
children for settling the question of inheritance.

3. The litigation started. with the filing of 0.S. No. 38 of 1976 and G
O.S. No. 39of1976 in the court of Subordinate Judge at Badagara, Kerala,
by the respondents for a decree for possession over certain properties,
which allegedly were in the possession of the appellants, and for half share
by partition in the tenahcy land held in common by late P.K.K. Raman Nair
with his second wife, namely, appellant No. 1. The appeilants did not lag
behind and they filed a suit (0.S. N-0. 99 of 1977) for partition of the H
8 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A properties of late P.K.K. Raman Nair, which were said to be in the
possession of the respondents. ,...

4. Respondents had instituted the suits on the basis of their title, with
the allegations that the appellant Nos. 2 to 6 and their mother, namely,
appellant No. 1, were not the legal heirs of Raman Nair, while the appel-
B !ants had instituted their suit (O.S. No. 99 of 1977) for partition of the
properties indicated in schedules A, B & C to the plaint, on the ground
that they being the legal heirs of Raman Nair were entitled to a share in
the properties left by him along with the respondents.

5. All the three suits wer.e tried together by the trial court and were
c dismissed with the finding that the second marriage of Raman Nair with
appellant No. 1 had taken place at a time when his first wife, Ammu Amma,
was alive and, therefore, it was invalid, with the result that the appellant
Nos. 2 to 6, who were the children born of the second marriage, would not
inherit any share in the properties left by Raman Nair.
D
6. Three appeals were consequently filed in the High Court and the only
question urged before the High Court was that the second wife and children
were also the legal heirs of Raman Nair, but the High Court by its impugned
judgment and order dated 22.6.1989 dismissed the appeals with a little
modification that the house in the plaint schedule property in O.S. No. 39 of
E 1976 was directed to be allotted, as far as possible, to appellant No. 1 as she
was living in that house with her children. Hence these appeals.

7. Mr. P.S. Pot~ Sr. Advocate, appearing on behalf of the appellants,
has contended that the trial court as also the High Court were in error in
•
dismissing the suit of the appellants for partition of their share in the property
F as the appellants were the legal heirs of Raman Nair and the inheritance could
not be denied to them merely on the ground of his second marriage with
appellant No. l, particularly as Section 16 of the Hindu Marriage Act, 1955
specifically provides that, notwithstanding that a marriage is null and void, any
child of such marriage, who would have been legitimate if the marriage had
G been valid, shall be legitimate and get an interest in the property of his parents,
but not in the property of any other person.;

8. The contention of the learned counsel for the respondents, on the
contrary, is that benefit of Section 16 can be given only to such marriages
as are null and void under Section 11 of the Hindu marriage Act, 1955 and
H not to any other marriage. His contention further is that a marriage would
P.E.K. KALLIANIAMMA v. K. DEVI [S.SAGHIRAHMAD,J.] 9

be null and void under Section 11 only if it is performed after the coming A
into force of the Act and, therefore, all other marriages which were
performed prior to the Hindu Marriage Act, 1955, would not be covered
by Section 16 and children born of such marriage would not be entitled to
the benefit of statutory legitimacy or inheritance.

9. It may be mentioned that one of the contentions raised before the B
High Court was that if the benefit of legitimacy contemplated by Section
16 of the Act is not extended to children born of the second or invalid
marriages held prior to the Act, the provisions would have to be struck
down as violative of Article 14 of the Constitution, inasmuch as they
purport to create two classes of illegitimate children, namely, those born C
of the invalid marriages prior to the Act and those born of the void
marriages performed after the enforcement of the Act. This was not
accepted by the High Court which was of the opinion that the provisions
of Section 16 were not violative of Article 14 of the Constitution.

10. Marriage, according to Hindu Law, is a holy union. It is not a D
contract but a Sanskara or sacrament.

11. The religious rites solemnizing a marriage include certain vows
and prayers by the parties made before the altar of God. Mr. K.P. Saksena
has reproduced the original Sanskrit vows in his book "Commentaries on
the Hindu Marriage Act, 1955" from the "Vivah Padathi" (marriage code E
according to Laugakshi) complied and translated by Pt. Bindheswar Nath
Razdan Shastri, Raj Vaidya. The translated portion is given below :

"In the three mantras of Laja (parched paddy) Hawan, the
bride says : - F
"! give oblation to the Fire god, the destroyer of enemies. With
the grace of the side destroyer of enemies, may I never be
separated from my husband's house.

Other unmardcd girls have worshipped the Fire God, the G
sustainer of the earth, for the fulfilment of their desire. Knowing
that their desire were fulfilled. I have also made an oblation, may
the same Fire God, sustainer of the earth, be pleased and with his
grace may I never be separated from my husband's house.

I worship Shankar in the form of Fire God, the god of good H
10 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A repute and the protector of husband. May by the grace of Shankar,
the Fire God, I and my husband be freed from death as the ripe
I
melon is freed from its knot in the creeper. With His grace may I
never be separated from may husband's house.

May this oblation be acceptable to the fire God. May sacred
B fire separate me from this (my father's) house but never from my
husband's. -

May my husband live long and my kinsmen be prosperous. May
this oblation be acceptable to the Fire God.

c I cast this parched paddy in fire. May it make you (the husband)
and me prosperous. The boon be granted by agni."

Similarly, bridegroom says to the bride : -

"O bride! trace your first step, by this may our foodstuffs
D increase. May God let me keep your company till I live.

0 bride! trace your second step, by this may our strength grow,
may God let me keep your company till I live.

0 bride! trace your third step, by this may our wealth increase.
E May God let me Keep your company till I live.

0 bride! trace your fourth step, by this may otir comforts and
pleasures increase. May God let me keep your company till I live.

0 bride! trace your fifth step. May your progeny increase. May '
F
God let me keep your company till I live.

0 bride! trace your sixth step. May we always get the fruits and
flowers of the six season,<. May God let me keep your company till
I live.
G
0 bride! trace your seventh step. By this may we live long and
our relations be loving. May God let me keep your company till I
live. 11

12. The effect of these promises and prayers is that the marriage
H becomes indissoluble and each party becomes the complementary half of
P.E.K KALLIANI AMMA v. K DEVI [S. SAGHIR AHMAD, J.] 11

the other so that separation becomes unthinkable. A

13. The terms prescribed by the Dharam Shastras, secure to the wife
a high and strong position, as is indicated by the dialogue between the bride
and the bridegroom during Saptapadi which again have been quoted in his
book by Mr. K.P. Saksena on being supplied to him by Sahityacharya Shri
Pandit Rameshwar Dwivedi. They are as under : B

'The bridegroom says :

"Madhupark has destroyed sins in the fire of Laja Hawan, so
long as the girl does not sit on the left side, she is unmarried.
c
Madhupark have been performed first and oblation of parched
paddy having been offered to the fire, so long as the girl does not
sit on the left side she is unmarried.

The bridegroom says to the bride : "Do not go without my D
permission, to a park, to one who is drunk, to king's court and to
your father's hou.se. 11

"The bride says "Perform along with me the Bajpeya, Ash-
wamedha and Rajsuya Yagas, tuladan and marriage."
E
"With my consent and long with me consecrate Beoli, well and
tank etc., and God's temples and take bath during the months of
Magh, Karlik, and Baisakh."
• Select a friend or enemy, a place worth a visit or not, go on
pilgrimage, perform a marriage and engage in framing and com- F
merce after obtaining my consent and long with me.

Render into my hands what you earn by the grace of God
whether it be hundred, a thousand, a hundred thousand, a
thousand million and ten million. G
After obtaining my consent purchase, sell or exchange a cow,
a bull or a buffalo, a goat, an elephant a house or a camel.

My Lord, you should be my friend in the same way as Krishna
is of Arjun. Brahaspati is of Indra and as Swati is of Chatak." H
12 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A 14. Once "Saptapadi" is completed the marriage tie becomes un-
breakable. ,..
15. The legal position of a second marriage under the original Hindu
Law is described in 'Principles of Hindu Law' by Jogendra Chunder Ghose,
1903 Edition, as under :
B
'Polygamy was not allowable according to the spirit of the law, but
it was very generally practised, though the second wife could not
be associated in religious sacrifices, and was styled a wife not for
duty but for lust."
c 16. Sir Gooroodas Banerjee in his book Hindu Law of Marriage and
Stridhana, 4th Edition (re-printed in India in 1984)" lays down as under :

"A Hindu husband is always permitted to marry again during
the lifetime of his wife, though such marriage, if contracted without
D just cause, is strongly disapproved. "The first is the wife married
from a sense of duty," and the others are regarded as married from
sensual motives. 11 With sorrow," says Daksha feelingly, ndoes he eat
who has two contentious wives; dissension mutual enmity, mean-
ness, and pain distract his mind; but his commentator, Jagannath,
who lived at a time when kulinism and polygamy were widely
E prevalent, tries to soften the effect of the text, by showing that if
the wives be complacent, none of the evil consequences would
follow. The causes which justify supcrse"ion of the wife and
re-marriage during her lifetime, are barrenness, ill-health, ill-
tempcr, and misconduct of the wife.

F It should be observed that supersession (which is adhivedana
in Sanskrit) here means, as explained in the Mitakshara and the
Subodhini, merely the contracting of a second marriage while the
first wife lives; and it does not imply that the first wife is actually
forsaken, or that her place is taken by the second, in respect of
any matter except perhaps the husband's affection. It is true that
G
Vijnaneswara in one place uses superscs~ion an<l desertion as
synonymous, but Sulpani, another high authority, uses the term in
the sense given above, and Jagannatha appears to follow the latter.
This view is further confirmed by the rules regarding precedence
among wives, which is settled by law with a view to prevent
H disputes."
P.E.K. KALL!ANI AMMA v. K. DEVI [S. SAGHIR AHMAD, J.) 13

17. Mr. K.P. Saksena, in his Commentary on the Hindu marriage Act, A
1955, 3rd Edition (1964), writes as under :

"According to the Hindu Jurisprudence, a husband is always
permitted to marry again during the lifetime of the first wife but
such marriage, if contracted without just cause, is strongly disap- B
proved. Manu has justified the superscssion of the \Vifc and remar-
riage during her lifetime on the following grounds, viz. (i)
barrenness, (ii) ill-health, (iii) ill-temper and misconduct of the
wife, vie.le, Manu (IX, 80-81).
·-;
He further maintains that (l) the first wife is married from a C
sense of duty and (2) the others are regarded as married from
sexiJal motives, vide, Mann (III, 12-13).

Supersession has been explained in Mitakshara and Subodhini
as a contract of second marriage while the first wife is alive and D
not the desertion of the wife, for in desertion she is deprived of
her rights such as association in performance of religious rites,
religions duties, adoption, etc. In Ranjit Lal v. Bijoy Krishna, it has
been held that adoption by a senior widow though late in time is
valid notwithstanding an earlier adoption by a junior widow
\Vithout the consent of the senior \vidow whose adoption was E
declared ta:·be invalid, though both were authorised to adopt by
the deceased. The Rishis do not approve of unrestricted polygamy.
They permit men to take a second wife in the lifetime of the first
onty under special circumstances. Thus Manu says : 11 A wife, who
dr_inks any spurious liquors, who acts immorally, who shows hatred F
to her lord, who is incurably diseased, who is mischievous, \Vho
wastes his property, may at all limes be superseded by another
wife. A barren wife may be superseded by another in the 8th year;
she who brings forth stillborn children or whose children all infants
die in the tenth; she who brings forth only daughters, in the
G
•
eleventh and she who speaks unkindly, without delay." It is, there-
fnre. incorrect to supposed that the HinJu La\\' permits a man to
espouse a second wife during the life of the first except under
particular circumstances. Manu appears to present the perfect
ideal of conjugal fidelity by requiring both the husband and the
\Vife to be faithful to each other. Thus in conclusion on the subject H
14 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A of mutual duties of husband and wife, the sage ordains : Let mutual
fidelity continue till death : this, in few words, made be considered
as the supreme law between husband and wife; let a man and a
woman united by marriage, constantly beware, lest at any time
being disunited they violate their mutual fidelity." (Manu IX, 101-
102; V, 162-168)." This passage clearly implies monogamy to be
B essential condition of the supreme law of conjugal duties. But it
should be observed that the sages did not prohibit polygamy which
was prevalent at the time but the tendency of their legislation was
to discourage that practice by investing the first marriage with a
religious character, and by permitting the marriage for religious
c purposes of a second wife in the lifetime of the first, only in certain
contingencies when there was a failure of the object of marriage.

18. From the above, it would be seen that though polygamy was not
permitted, a second marriage was allowed in a restricted sense, and that
too, under stringent circumstances, as for example, there was a total failure
D of the object of marriage. Monogamy was the Ruic and Ethos of the Hindu
Society which derided a second marriage and rejected it altogether. The
touch of religion in all marriages did not allow polygamy to become part
of Hindu culture. This was the effort of community. Otherwise, this Court
in Bhaurao v. State of Maharashtra, AIR (1965) SC 1564 observed :
E
'l_Apa1t froni these considerations, there is nothing in the Hindu
law, as applicable to maniages till the enactment of the Hindu
M01riagc Act, 1955, which made a second maniage of a male Hindu,
du1ing the lifetilne of his previous wzfe, void. 11

F 19. Therefore, if a second marriage did take place, children born of
such marriage, provided it was not other\vise invalid, were not illegitimate
and in the matter of inheritance, they had equal rights.

20. In every community, unfortunately, there are people who exploit
G even the smallest of liberties available under law and it is at this stage that
the law intervenes to discipline behaviour. Various States. therefore,
passed their separate, though almost similar, laws relating to marriages by
Hindus restricting the number of wives to only one by providing specifically
that any marriage during the lifetime of the fist wife would be void.

H 21. There is no dispute that Mr. Raman was a 'Nair' and belonged
P.E.K. l_<ALLIANI AMMA v. K. DEVI (S. SAGHIR AHMAD, J.) 15

to Malabar Tarwad family. The personal law by which he was governed A
_, was the Marumakattayam Law of Malabar comprising of a body of judi-
cially recognised customs and usages, which prevailed among a consider-
able section of the people inhabiting the West Coast of South India. The
essential difference between Marumakattayam and other schools of Hindu
law was that the Marumakattayam school was founded on the matriarchate B
while others are founded upon the agnatic family. In the Mitakshara joint .
family the members claim through descent from a common ancestor, but
in a Marumakattayam family, which is known as the Tarwad, the descent
is from a common ancestress. Mr. Sundara Ayyar, who was a Judge of the
Madras High Court, has already written an excellent treatise on the cus-
tomary Jaws of Malabar which has been recognised as an authoritative work C
by the Privy Council in Kochunni v. Kuttanunni, AIR (1948) PC 47. This
Court had also had an occasion to refer to broad aspects of this law in a
few decisions (See : Balakrishna Menon v. Asstt. Controller of Estate Duty,
AIR (1971) SC 2390 and Venugopala Ravi Venna v. Union of India, AIR
(1969) SC 1094, Achuttan Nair v. C. Amma, AIR (1966) SC 411. In a recent D
decision in Padmavathy Amma v. Anununni Panicket, AIR (1995) SC 2154
= (1995] Supp. 3 SCC 352, it was indicated that :

"In the Marumakkathayam system of law succession to property is
traced through females, though the expression Marumakkathayam
strictly means inheritance by sister's children. It is because of this E
that a man's heirs are not his sons and daughter, but his sisters
and their children - the mother forming the stock of descent and
inheritance being traced through mother to daughter, daughter's
daughter and so on. A Marumakkathayam family is known as a
Tarwad and consists of a group of persons, males and females, all F
tracing descent from a comma~ ancestress. An ordinary Tarwad
consists of the mother, her children, male and female, the children
of such females and their descendants in the female line, how-low-
soever, living under the control and direction of the Karnavan, who
is the eldest male member. The junior male members are also
proprietors and have equal rights. The Tarwad is thus a typical G
matriarchal family. 11

22. Marumakattayam law was modified and altered by Madras
Marumukattayam Act, 1932 (XXII of 1933). This Act was in force when
Raman Nair married his first wife, Ammu Amma, in 1938. Section 5 of the H
16 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A Act provides as under :
"5(1) During the continuance of a prior marriage which is valid
under section 4, any marriage contracted by either of the parties
thereto on or after the date on which this Act comes into force
shall be void.
B
(2) On or after the said date, any marriage contractod by a
male with a marumuakkattayi female, during the continuance of a
prior marriage of such male, shall be void, notwithstanding that
his personal law permits of polygamy.

c It thus contained a specific prohibition that during the continuance of a
prior marriage, any marriage contracted by either of the parties thereto
shall be void.

23. But Healt has its own reasons. In spite of the statutory prohibi-
D tion, Raman Nair contracted a second marriage with respondent No. 1 in
1948.

24. The Maramakkattayam Act, 1932 was repealed by Section 7(2)
(read with the Schedule) of the Kerala Joint Hindu Family System (Aboli-
tion) Act, 1975 (Act 30 of 1976) with effect from 1.12.1976. Obviously with
E the repeal of the Act in 1976, the prohibition in Section 5 that the second
marriage would be void, ceased to be operative.

25. Learned counsel for the appellant, therefore, contended that
Madras Act XXII of 1933 which contained a prohibition against second
marriage having been repealed by the Kerala Joint Hindu Family System
F (Abolition) Act, 1975, the original Hindu law, based on Shastras and
scriptures, would revive and consequently Raman's marriage with appellant
No. 1 would become valid particularly as the repeal would have the effect
of obliterating the Madras Act XXII of 1933 from the Statute Book from
its inception as if it never existed. The contentions are without substancv
G and deserve imn1ediate rejection, on account uf the reasons which we are
setting out hercinbclow.

26. Section 7 of the Kerala Joint Hindu Family System (Abolition)
·Act, 1975 (Act No. 30 of 1976) is reproduced below :

H "7. Repeal - (1) Save as otherwise expressly provided in this Act,
P.E.K. KALLIANIAMMA v. K. DEVI [S.SAGHIRAHMAD,J.j 17

any text, rule or interpretation of Hindu law or any custom or usage A
as part of that law in force immediately before the commencement
of this Act shall cease to have effect with respect to any matter for
which provision is made in this Act.

(2) The Acts mentioned in the Schedule, in so far as they apply
to the whole or any part of the State of Kerala, are hereby B
repealed."

27. In the schedule appended to the Act, the Madras Act is men-
tioned at serial No. 1.

28. Section 4 of the Kerala Interpretation and General Clauses Act c
provides, inter alia, is under :

"4. Effect of repeal - Where any Act repeals any enactment hitherto
made or hereafter to be made, then, unless a different intention
appears, the repeal shall not - D
(a) revive anything not in force or existing at the time at which the
.
repeal takes effect : or '
(b) affect the previous operation of any enactment so repealed or
anything duly done of suffered thereunder, or E
(c) affect any right, privilege, obligation or liability acquired, ac-
crued or incurred under any enactment so repealed; or

., (d) .. ..
'
(e) .... " F

29. In vie\\t' of these provisions, it is necessary to examine whether a
different intention is expressed in the Kerala Joint Hindu Family System
(Abolition) Act, N/5 and what actually is the effect of repeal.

30. The provisions of Section 7(2), by which the Madras Act has been
G
repealed, have been quoted above. The repealing Act does not indicate
any intention contrary to the provisions contained in the Kerala Interpreta-
tion and General Clauses Act which, therefore, will apply with full vigour
on the principle that whenever there is a repeal of any enactment, the
consequences indicated in Section 4 would follow, unless there was any H
18 SUPREME COURT REPORTS [1996) SUPP. 2 S.C.R.

A saving clause in the repealing enactment of any other intention was ex-
pressed therein. In the case of a simple repeal, there is hardly any room
for the expression of a contrary view.

31. The instant case, as would appear from a perusal of Section 7(2)
of the repealing enactment, is a case of repeal simplicitor. In view of
B Section 4(b) of the Kerala interpretation and General Clauses Act, the
previous operation of Madras Act XXII of 1933 will not be affected by
the repeal nor 1vill the repeal affect anything duly done or suffered
thereunder. So also, a liability incurred under that Act will remain unaf-
fected and will not be obliterated by the repeal as indicated in clause (c)
c of section 4.

32. Raman had contracted a second marriage, in the lifetime of his
first wife, in 1948 when Madras Act XX!I of 1933 was in force, which
prohibited a second marriage and, therefore, the consequences indicated
in the Act that such a marriage would be void would not be effected nor
D will the previous operation of the Act be affected by the repeal of that Act.
The repeal does not mean that Madras Act XXII of 1933 never existed on
the Statute Book nor will the repeal have the effect of validating Raman's
second marriage, if it was already a void marriage under that Act.

33. Learned counsel for the appellant then contended that appellant
E Nos. 2 to 6 a shall, for purposes of inheritance, be treated as legitimate
sons Section 16 of the Hindu Marriage Act, 1956 and, therefore, their suit
ought to have been decreed. He also contended that if benefit of
legitimacy cannot be given to the appellants on the ground that Section 16
does not apply to them and applies to those illegitimate children who were
born of a void marriage performed after the Act came i11to force, the
F provisions will have to be struck down as discriminatory and violative of
the rule of equality before law contained in Article 14 of the Constitution.
We shall examine both the contentions.

34. Whenever an enactment is attacked on the ground of discrimina-
G lion, it becomes the duty of the court to look to the legislation as a whole
and to find out why class legislation was introduced and what was the nexus
between the classification and the object sought to be achieved by it. In
order to decipher this question we have to have a peep into the back-
ground.

H 35. Before the enactment of the Hindu Marriage Act, 1955 there
P.E.K.KALLIANIAMMA v. K. DEVI[S.SAGH!RAHMAD,J.] 19

existed General Hindu law, based upon scriptures and Shastras, including A
their exposition by scholars, which regulated marriages amongst Hindus,
--: There were different customs and usages prevalent in different parts of the
country.

36. In the Malabar area with which we are concerned in the instant
case and which now forms part of the Kerala State, there were different B
customs regarding marriage prevalent among different Groups of people.
Local laws were also made regulating marriages among people inhabiting
particular local area, as for example, in the Malabar area there was the
Madras Marumakkattayam Act (No. XXII of 1933). Section 5 of this Act
prohibited a second marriage during the lifetime of a spouse and specifi- c
cally provided that such a marriage would be void. It laid down as under:

"5. (1) During the continuance of a prior marriage which is valid
under section 4, any marriage contracted by either of the parties
thereto on or after the date on which this Act comes into force
shall be void. D

(2) On or after the said date, any marriage contracted by a
male with a marumakkattayi female, during the continuance of a
prior marriage of such male, shall be void, notwithstanding that
his personal law permits of polygamy. E
37. In the same area, there was the Madras Namboodri Act (No. XX!
of 1933) which was applicable to Namboodri Brahmans not governed by
Marumakkattayam law of inheritance. This Act also prohibited bigamy but
it was only partial prohibition as it was provided by Sections 11 and 12 of
the Act as under : F

"11. No Narnbudri who has a Nambudri wife living shall marry
another Nambudari woman except in the following cases :

(a) where the wife is afflicted with an incurable disease for G
more than five years,

(b) were the wife has not borne him any child within ten years
of her marriage,

(c) where the wife has become an outcaste. 11 H
20 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A "12. (1) Any Nambudri male who contracts a marriage in con-
travention of Section 11 shall be punished with fine which may
extend to one thousand rupees, but a marriage so contracted shall
not be deemed to be invalid.

(2) Any person who conducts, directs or abets the performance
B of any marriage in contravention of section 11 shall be punished
with fine which may extend to one hundred rupees."

38. Thus, a second marriage was permissible under certain cir-
cumstances enumerated in Section 11. It was also indicated that the second
C marriage would not be void. Thus, in the same region, in respect of
different groups of people, different laws were made, although both con-
sisted of people professing Hindu religion. This anomaly was removed by
repealing Sections 11 and 12 of the Act by Section 8 of the Madras Hindu
(Bigamy Prevention and Divorce) Act, 1949 (Madras Act VI of 1949) with
the result that Section 9 of the Namboodari Act, which provided as under:
D
"9. '.'lotwithstanding any custom or usage to the contrary every
major male Nambudri shall, subject to the provisions of section 5
of the Madras Marumakkattayam Act, 1932, and any other law for
the time beir.g in force, be at liberty to marry in his own com-
E munily."

became operative with full force and vigour. Since Section 9 was to operate
subject to the provisions or Section 5 of the Tamil Nadu (Madras)
Marumakkattayam Act, 1932, a Nambudri could not, after deletion of
sections 11 and 12, marry a second wife during the lifetime of the first wife.
F
39. The evil of bigamy was sought to be prevented by regional laws
made either prior to or after the Constitution of India. Since the attempt
of these la\v~ was to introduce social reforms in the community at regional
levels, the High Courts, in which the validity of such laws was challenged,
G particularly after the enforcement of the Constitution, on the ground of
violation of Articles l 4, J 5 and 25 upheld those laws with the finding
rccurded in strong terms that the laws were neither discriminatory nor did
they infringe Article 25 of the Constitution.

40. The Bombay High Court in State v. NarsuAppa Mali, !LR (1951)
H Bomhay 775 ., 55 Romhay Law Reporter 779 = AIR (1952) Bombay 84,
P.E.K KALLIANI AMMA v. K DEVI [S. SAGHIR AHMAD, J.] 21

rejected the argument that the Bombay (Prevention of Hindu Bigamy A
Marriage) Act, 1946 discriminated between Hindus and Muslims by en-
forcing monogamies on Hindus and not on Muslims as the Court was of
the opinion that the State was free to embark upon social reforms in stages.

- It was pointed out by the Court that penalties provided in the Act, which
were more stringent than those provided in the Indian Penal Code, were B
rightly prescribed and were justified on the ground that having regard to
the outlook of the Hindus, it may have been considered necessary to
impose severer penalties in order to implement the law effectively.

41. The Madras High Court in Slinivasa Iyer v. Saraswathi Amma~
ILR (1953) Madras 78 = AIR 1952 Madras 193, upheld the validity of the C
Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 and held that
the Act did not violate Article 15 or 25 and there was no discrimination
between Hindus and Mohammedans on the ground of religion.

42. The Full Bench of the Andhra Pradesh High Court in G. Sam-
bireddy v. G. Jayamma, AIR (1972) A.P. 156 considered both the Bombay D
and Madras decisions referred to above and held that Sections 11 and 17
. <i of the Hindu Marriage Act, 1955 did not violate Article 15(1) as Sections
5(1), 11 & 17 merely introduced a social reform for the class of persons to
whom the Act applied.
E
43. Parliament consisting of the representatives of the people knew,
and the Courts can legitimate.ly presume that it knew, the situation prevail-
ing all over India with regard to the different laws, customs and usages
regulating marriages among Hindus and that it further knew their problems
C)'d their need for a uniform codified law concerning marriages.
F
44. It was in this background that Hindu Marriage Act, 1955 was
enacted by Parliament to amend and codify the law relating to marriage
among Hindus. The Act applies to every person who is a Hindu by religion
in any of its forms or developments, indicated in Section 2 thereof, includ-
ing a person who is a Buddhist, Jain or Sikh by religion. Besides other
categories of persons who are to be treated as 11 Hindus\ the explanation G
appended to Section 2 provides that any child, legitimate or illegitimate,
both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion,
shall also be a Hindu. It also provides that any child, legitimate or il-
legitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh and
who is brought up as a member of the tribe, group, community or family H
22 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

to which such parent belongs, will be a Hindu.

45. Other relevant provisions of the Act may also be noticed.

46. Section 4 of the Act provides that the Act shall have an overriding
effect. It provides as under :

"4. Oveniding effect of Act - Save as otherwise expressly provided
in this Act : -

(a) any text, rule or interpretation of Hindu law or any custom or
usage as part of that law in force immediately before the commen-
cement of this Act shall cease to have effect with respect to any
matter for which provision is made in this Act:

(b) any other law in force immediately before the commencement
of this Act shall cease to have effect in so far as it is inconsistent
with any of the provisions contained in this Act."

47. Conditions for a Hindu marriage are indicated in Section 5 which
is quoted below :

"5. Conditions for a Hindu ma11iage -- 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;

(ii) at the time of the marriage, neither party -

(a) is incapable of giving a valid consent to in consequence
of unsoundness of mind; or

(b) thought capable of giving a valid consent, has been suf-
fering from mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of
children; or

(c) has been subject to recurrent attacks of insanity or epilep-
sy;

(iii) the bridegroom has completed the age of (twenty one years)
and the bride the age of (eighteen years) al the time of the
marriage;
P.E.K. KALLIANI AMMA v. K. DEVI [S. SAGHIR AHMAD, J.] 23

(iv) the parties are not within the degrees of prohibited relation- A
ship, unless the custom or usasge 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 B

48. Section 16, as originally enacted, provides as follows :

''16. Legitimacy of children of void and voidable marriages :

Where a decree of nullity is granted in respect of any marriage C
under Section 11 or Section 12, and child begotten or conceived
before the decree is made who would have been the legitimate
child of the parties to the marriage if it had been dissolved instead
• of having been declared null and void or annulled by a decree of
nullity shall be deemed to be their legitimate child notwithstanding D
the decree of nullity :
• Provided that nothing contained in this section shall be con-
strued as conferring upon any child of a marriage which is declared
null and void or annulled by a decree of nullity any rights in or to
the property of any person other than the parents in any case E
where, but for the passing of this Act, such child would have been
incapable of possession or acquiring any such rights by reason of
his not being the legitimate child of his parents."

49. Sections 11 and 12 which arc referred to in Section 16 above are
also quoted below : F

"I I. Void marriages - Any marriage solemnized after the commen-
cement 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 G
conditions specified in clauses (i), (iv) and (v) of Section 5."

"12. Voidable marriages - {1) Any marriage solemnized, whether
before or after the commencement of this act, shall be voidable
and may be annulled by a decree of nullity on any of the following
grounds, namely·: H
24 SUPREME COURT REPORTS \ 1.996] SUPP. 2 S.C.R.

A (a) that the marriage has not been con:-iummated owing to A
the impotence of the respondent; or

(b) that the marriage is in contravention of the condition
specified 1n clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent B
of the guardian in marriage of the petitioner was required
under Section 5 as it stood immediately before the commen-
cement uf the Child 'vlarriage Restraint (Amendment) Act,
1978 (2 of 1978) the consent of such guardian was obtained
c by force or by fraud as to the mature of the ceremony or as c
to any material fact or circumstance concerning the respon-
dent; or

(d) that the respondent was at the time of the marriage
pregnant by some person other than the petitioner.
D D
(2) !'lutwithstanding anything contained in sub-section (1), no
petition for annulling a marriage -

(a) on the ground specified in clause (c) of sub- section (1), shall
be entertained if -
E E
(i) the petition presented more than one year after the force
had ceased to operate or, as the case rnay be, the fraud had
been discovered; ur

(ii) the petitioner has, with his or her full cunse.nt, lived with
F the other party to the marriage as husband or wife after the
F
force had ceased to operate or, as the case may be, the fraud
had b.;i:.n discuv~r~d;

(b) on ground specified in clause (d) of sub-section (1) shall be
G cntcrt'1incd unless the court i:-. sati~fied : G
(i) that the petitiont:r w&~ at the tin1e of the n1arriage ignorant
of the facts alleged;

(ii) that proceedings have be!;n instituted in the case of a
H marriage solc1nnize<l before the commencerncnt of this Act H
P.E.K. KALLIANI AMMA v. K. DEVI rs. SAGHIR AHMAD, J.] 25

within one year of such co1nmencement and in the case of A
marriages solemnized after such commencement within one
year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner
has not taken place since the discovery by the petitioner of
the existence of the said ground." B

50. The requirements for the applicability of Section 16 (as originally
enacted), which protected legitimacy, were that :

(i) there was a marriage;
c
(ii) the marriage was void under section ll or voidable under
section 12.

(iii) there was a decree annulling such marriage either under
Section 11 or under Section 12.
D
(iv) the child was begotten or conceived before the decree was
made.

51. A marriage would be null and void of it was solemnized in
contravention of clauses (i), (iv) and (v) of Section 5. Clause (i) prohibits
E
a marriage if either party has a spouse living at the time of the marriage.
Clause (iv) prohibits a marriage if the parties are not within the degrees
of prohibited relationship while clause {v) prohibits a marriage between
parties who are the 'sapindas' of each other. A marriage in any of the above
situations was liable to be declared null and void by a decree of nullity at
the instance of either party to the marriage. Section 16 was intended to F
intervene at that stage to protect the legitimacy of children by providing
that children begotten or conceived before the making of the decree would
be treated to be legitimate and they would inherit the properties of their
parents, though not of other relations.

52. Similarly, a marriage solemnized either before or after the com- G
mencemenl of the Hindu Marriage Act, 1955 was made statutorily voidable
if it was found that the husband was impotent at the time of marriage and
continued to be so till the institution of the proceedings or that a party to
the marriage was either idiot or a Junatic or that the consent of the party
to the marriage or that of the guardian required under Section 5 of the H
26 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A Act, was obtained by force or fraud or that the girl at the time of marriage
was pregnant by some other person. In such a situation, the marriage was
liable to be annulled by a decree of nullity at the instance of either party
to the marriage. The legitimacy of children of such a marriage was also
protected by Section 16 by providing that for purposes of inheritance, the
children would be treated to be legitimate and would inherit the properties
B of their parents.

53. Now, legitimacy is a matter of status. In Ampthill Peerage Case
( 1976) 2 All England Reports 411 (424), HL (Committee for Privileges}, Lord
Simon of Glaisda/e observed :
c "Legitimacy is a status : it is the condition of belonging to a class
in society the members of which are regarded as having been
begotten in lawful matrimony by the men whom the law regards
as their fathers. Motherhood, although also a legal relationship, is
based on a fact, being proved demonstrably by parturition. Father-
D hood, by contrast, is a presumption. A women can have sexual
intercourse with a number of men any of whom may be the father
of her child; though it is true that modern serology can sometimes
enable the presumption to be rebutted as regards some of these
men. The status of legitimacy gives the child certain rights both
E against the man whom the law regards as his father and generally
in society. 11

54. In an Australian case, Barwick, 0 in Salemi v. Minister for
Immigration and Ethnic Affairs, (1977) 14 ALR 1 (7), stated :

F "I cannot attribute any other meaning in the language of a lawyer
to the word "legitimate" than a meaning which expresses the
concept of entitlement or recognition by law."

55. lllegitimate children, on the contrary, are children as are not born
either in lawful wedlock, or within a competent time after its determination.
G It is on account of marriage, valid or void, that children are classified as
legitimate or illegitimate. That is to say, the social status of children is
determined by the act of their parents. If they have entered into a valid
marriage, the children are legitimate; but if the parents commit a folly, as
a result of which a child is conceived, such child who comes into existence
H as an innocent human baby is labelled as illegitimate. Realising this situa-
';!!I

,.
P.E.K. KALLIANI AMMA v. K. DEVI (S. SAGHIR AHMAD, J.] 27

tion, our Parliament, and we must appreciate the wisdom of the legislators A
~' .... then adorning the seats in the august hall, made a law which protected the
legitimacy of such innocent children. This was a bold, courageous and
dynamic legislation which was adopted by other advanced countries.

56. The concept of illegitimacy was abolished in New Zealand by the
Status of Children Act 1969 (NZ). Under s. 3 of this Act, for all purposes B
of the law of New Zealand, the relationship between every person and his
father and mother is to be determined irrespective of whether the father
and mother are or have been married to each other, and all other relation-
--; . ships are to be determined accordingly.

57. In England also, social reforms were introduced to supplement
c
or improve upon the Matrimonial uses Act by enacting Family Law Reform
Act, 1969 as also the Family Law Reform Act, 1987 to give limited right of
succession to the illegitimate children in the property of their parents on
allowing the parents to succeed to the property of their illegitimate
children. D

'" 58. In spite of the foresightedness of the legislators, the intention of
the Parliament could not be fully reflected in the Act which unfortunately
suffered at the hands of persons who drafted the Bill and the various
provisions contained therein. The results were startling. Since the Rule of
Legitimacy was made dependent upon the marriage (void or voidable)
E
being annulled by a decree of annulment, the children born of such
marriage, would continue to be illegitimate if the decree of annulment was
not passed, which, incidentally would always be the case, if the parties did
'1 not approach the Court. The other result was that the illegitimate children
• came to be divided in two groups; those born of marriage held prior to the F
----"\ Act and those born of marriage after the Act. There was no distinction
between these two groups of illegitimate children, but they came to suffer
hostile legislative discrimination on account of the language employed
~

therein. Indeed, language is an imperfect instrument for the expression of

- ....
human thought.

59. The object of Section 16 was to protect legitimacy of children
G

born of void or voidable marriages. In leaving. out one group of illegitimate
children from being treated as legitimate, there did not appear to be any
nexus between the object sought to be achieved by Section 16 and the
classification made in respect of illegitimate children similarly situate or H
28 SUPREME COURT REPORTS (1996J SUPP. 2 S.C.R.

A circumstanced. The provisions of Section 16 were, therefore, to that extent,
clearly violative of Article 14 of the Constitution.

60. The legislature, as a matter of fact, committed the mistake of
borrowing in this Section the language of Section 9 of the Matrimonial
Clauses Act, 1850 made by the British Parliament which dealt with the
B legitimacy of children of only voidable marriage and not the children of
marriages void ipso jure.

61. The defect in the language employed in Section 16 was noticed
by some High Courts also. The Madras High Court iu T Ramayammal v.
c T Mathwnma/, AIR (1974) (Madras) 321, which was a decision rendered
prior to the amendment of Section 16, laid down that unless a decree of
nullity was granted in respect of a marriage which was void, the legitimacy
of the children born of such marriage would not be protected. The High
Court further observed as under :

D "The wording of Section 16 so far as it is relevant to a marriage
void under Section 11 leads to an anomalous and startling position
which could have hardly been contemplated by the legislature. The
position and status of children of void marriage should obviously
be the same either the marriage is declared a nullity under Section
11 or otherwise. It is seen that the legislature has borrowed in this
E
section the language of Section 9 of the Matrimonial Causes Act,
1950 which deals with the legitimacy of children of only voidable
marriages and does not refer to children of marriages void ipso
jure and made the section applicable to cases of both voidable and
void marriages annulled by a decree of court. Though the language
F of the section is more appropriate to voidable marriages, it has
been applied to void marriages as well, presumably with the object
of ensuring that where a marriage was in fact solemnised but was
void for any of the grounds mentioned in Section 11, the children
of such marriage should not be bastardised whether a decree of
G nullity is passed or not. But the above obvious intention of the
Legislature has not been duly carried out by a proper wording of
the section. 11

62. The High Court was of the opinion that :

H "In view of the language of the section being plain and unam-
P.E.K. KALLIANI AMMA v. K. DEVI [S. SAGHIR AHMAD, J.] 29

.. ""I
biguous, it is not possible for the court to construe the same in
different manner having in mind that presumed intention of the
A

legislature even if it appears to be obvious. I am therefore, of the
view that this is a casus omissus which the Courts cannot reach for
no canon of construction will permit the court to supply what is
clearly a lacuna in the statute and it is for the legislature to set
B
right the matter by a suitable amendment of the section."

63. It may also be pointed out at this stage that the Joint Committee
which was constituted to look into the provisions of the Hindu Marriage
--1 Act, indicated in its Report that in no case should children be regarded as
illegitimate and consequently it followed the principles contained in Sec- c
tion 26 of the Special Marriage Act, 1954, to provide that children born of
void of voidable marriages shall be treated to be legitimate unlike the

- English law which holds the child of a voidable marriage alone to be
legitimate but not that of a void marriage (See : Section 9 of the Mar-
timonial Clauses Act, 1850).
D
... 64. In order, therefore, to give full effect to what was intended to be
achieved by enacting Section 16, the Parliament intervened and amended
Section 16 by Act No. LXVIII of 1976 pointing out in the Notes to the
Clauses of the Bill and the Amending Act, 1976 that :
E
"this clause seeks to substitute Section 16 so as to clarify the
intention and to remove the difficulties in interpretation."

65. The Amended Section 16 is quoted below :

"16. Legitimacy of children of void and voidable marriages. F
Notwithstanding that a 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 (68of1976), and whether or not a decree
of nullity is granted in respect of that marriage under this Act and
G
.;
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 H
30 SUPREME COURT REPORTS 11996! SUPP. 2 S.C.R.

A 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(l) or sub-section (2) shall
B be construed as conferring upon any child of a marriage which is
null and void on 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
c any such rights by reason of his not being the legitimate child of
his parents. 11

66. The question now to be considered is the question relating ot the
'vires' of the Section in its present form, or, to put it differently, if Section
16, as originally enacted, contravened, in any way, Article 14, for the reason
D that it discriminated between two groups of illegitimate children similarly
circumstanced, does the Section, after its amendment by Act No. LXVIII •
of 1976 continue to be still violative of Article 14.

67. There is always a presumption that an Act made by the Parlia-
E ment or the State Legislature is valid; so also there is a strong presumption
in favour of the validity of legislative classification. It is for those who
challenge the Act as unconstitutional to show and prove beyond all doubts
that the legislature arbitrarily discriminated between different persons
similarly circumstanced. This presumption, however, can be displaced by
showing that the discrimination was so apparent and manifest that any
F
proof was hardly required. Section 16, as originally enacted, fell under this
category and we have already held that to the extent it discriminated
between two groups of illegitimate children in the matter of conferment of
status of legitimacy, it was violative of Article 14. The vice or the mischief
from which unamended Section 16 suffered has been removed or not is our
G next concern.

68. Hindu Marriage Act, 1955 is a beneficent legislation and, there-
fore, it has to be interpreted in such a manner as advances the object of
the legislation. The Act intends to bring about social reforms. Conferment
H of social status of legitimacy on a group of innocent children, who are
P.E.K. KALLIANI AMMA v. K. DEVI [S. SAGHIR AHMAD, J.] 31

otherwise treated as bastards, is the prime object of Section 16. A

69. Learned counsel for the appellant tried, at this stage, to invoke
Heydon's Rule which is a sound rule of construction of a statute firmly
established in England as far back as in 1584 when Heydon's case (1584)
3 Co. Rep. 7a was decided that for the true interpretation of all statutes in
general, four things are to be discerned and considered : B

(1) what was the common law before the making of the Act,

(2) what was_ the mischief and defect for which the common law
did not provide,
c
(3) what remedy the Parliament hath resolved and appointed to
cure the disease of the commonwealth, and

·- (4) the true reason of the remedy; and then the office of all the
judges is always to make such construction as shall suppress the D

,., mischief, and advance the remedy .......... .

70. Heydo11'o· rule was approved In re Mayfair Property Company
(1898) 2 Ch 28 (C4), wherein Lindley, M.R. observed that the rule was "as
necessary now as it was when Lord Coke reported 4eydon's case 11 • This
rule was also followed by the Earl of Halsbury in Eastman Photographic E
Materials Company Ltd. v. Comptroller-Genera/ of Patents, Designs a11d
Trade- Marks, (1898) AC 571, 576 (HL) in the following words :

"My Lords, it appears to nie that to constnte the statute no1v in
question, it is not only legitimate but highly co11venient to refer both
to the fainter Act und to the asce1tained evils to which the fomzer F
Act had given 1ise, and to the latter Act which provided the remedy.
17iese three things being con1pared, I cannot doubt the conclusion.

71. Heydon's case has also been followed by this Court in a number
of decisions, all of which need not be specified here except K.P. Ve1ghese G
v. Income-tax Officer, Emaku/am and Anr., 131 ITR 597 = (1982] 1 SCR
629 = (1981] 4 SCC 173, Bengal Immunity Co. Ltd. v. State of Bilzar, AIR
(1955) SC 661 and Mis. Goodyear India Ltd. v. State of Hwyana, AIR
(1990) SC 781

Heydon's Rule is generally invoked where the words in the statute H
32 SUPREME COURT REPORTS [1996] SUPP. 2S.C.R.

A 1fe ambiguous and/or are capable of two meanings. In such a situation, the
meaning which avoids the mischief and advances the remedy, specially in
the case of a beneficial statute, is adopted. There is some controversy ,...
whether Heydon's rule can be invoked in any other situation specially
where the words of the statute are clear and unambiguous. In C.l. T., M.P.
B & Bhopal v. Sodra Devi, AIR 1957 SC 832, it was indicated that the rule
Heydon 's case is applicable only when the words in question are ambiguous
and capable of more than one meaning. That is what was expressed by
Gajendragadkar, J. In Kanai/al Sur v. Paramnidhi Sadlmkhan, AIR (1957)
SC 907. In Maunsell v. Olins, (1975) 1 ALL ER 16 (HL) p-29, Lord Simon
explained this aspect by saying that the rule in Heydon's case is available
c at two stages; first before ascertaining the plain and primary meaning of
the statute and secondly at the stage when the Court reaches the conclusion
that there is no such plain meaning.

Be that as it may, we are not invoking the Rule but we have never-
D theless to keep in mind the principles contained therein to examine and
find out whether the mischief from which the earlier legislation suffered on
account of use of certain words has since been removed and whether the
subsequent legislation is constitutionally valid and, on account of use of
new phraseology, implements effectively the intention of the legislature in
E conferring the status of legitimacy on children, who were, otherwise, il-
legitimate.

72. Keeping these principles in view, let us now proceed to examine
the amended provisions of Section 16.

F 73. Section 16 was earlier linked with 11 and 12. On account of the
language employed in unamended Section 16 and its linkers with Sections
11 and 12, the provisions had the effect of the dividing and classifying the
illegitimate children into two groups without there being any nexus in the
statutory provisions and the object sought to be achieved thereby. ll is to
G be seen whether this mischief has been removed.

74. Section 16(1) begins with a non obstante clause.

75. "Non Obstante clause is sometimes appended to a Section in the
beginning, with a vie\v to give the enacting part of the Section, in case of
H conflict, an over-riding effect over the provision or Act mentioned in that
PE.K. KALLIANI AMMA v. K. !)EV! [S. SAGHIR AHMAD, J.] 33

clause. It is equivalent to saying that in spite of the provision or Act A
mentioned in the non obstante clause, the enactment following it, will have
its full operation or that the provision indicated in the non obstante clause
will not be an impediment for the operation of the enactment." (See : Union
of India v. G.M Koki/, [1984] Supp. SCC 196 = AIR (1984) SC 1022,
Chandavarkar Sita Ratna Rao v. Ashalata S. Gumam, [1986] 4 SCC 447
B
(477), R.S. Raghu11ath v. State of Kamataka, [1992] 1 SCC 335, G.P. Singh's
P1inciples of Statut01y Interpretation).

76. The words "notwithsta11di11g that a maniage is 11u/l and void under
Section 11" employed in Section 16(1) indicate undoubtedly the following:

(a) Section 16(1) stands delinked from Section 11.
c
(b) Provisions of Section 16(1) which intend to confer legitimacy
on children born of void marriages will operate with full vigour in
spite of Section 11 which nullifies only those marriages which are
held after the enforcement of the Act and in the performance of D
which Section 5 is contravened.

(c) Benefit of legitimacy has been conferred upon the children
born either before or after the date on which Section 16(1) was
amended.
E
(d) Mischief or the vice which was the basis of unconstitutionality
of unamended Section 16 has been effectively removed by amend-
ment.

(e) Section 16(1).now stands on its own strength and operates
independently of other sections with the result that it is constitu- F
tionally valid as it does not discriminate between illegitimate
children similarly circumstanced and classifies them as one group
for conferment of legitimacy.

Section 16, in its present from, is, therefore not ultra . vircs the G
Constitution.

77. Section 16 contains a legal fiction. It is by a rule of fictio jwis that
the legislature has provided that children, though illegitimate, shall, never-
theless, be treated as legitimate notwithstanding that the marriage was void
or voidable. H
34 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A 78. When an Act of Parliament or a State Legislature provides that
something shall be deemed to exist or some status shall be deemed to have
beeu acquired, which would not have been so acquired or in existence but
for the enactment, the Court is bound to ascertain the purpose for which
the fiction was created and the parties between whom the fiction was to
B operate, so that full effect may be given to the intention of the legislature
and the purpose may be carried to its logical conclusion, (See : M/s. J.K.
Cotton Spg. & Wvg. Mills Ltd. v. Union of India, AIR (1988) SC 191,
Ame1ica11 Home Products Corporation v. Mac Laboratories, {1986] 1 SCC
465 ~ AIR (1986) SC 137.

c Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough
Council, (1952) AC 109 B : (1951) 2 All ER 587 observed that which one
is bidden to treat an imaginary state of affairs as real, he must surely, unless
prohibited from doing so, also imagine as real the consequences and
incidents which inevitably have flowed from it - one must not permit his
D 'imagination to boggle' when it comes to the inevitable corollaries of that
state of affairs. (See also: M. Venugopal v. Divisional Manager, LIC (1994)
2 sec 323.

79. In view of the legal fiction contained in section 16, the illegitimate
E children, for all practical purposes, including succession to the properties
of their parents, have to be treated and legitimate. They cannot, however,
succeed to the properties of any other relation on the basis of this rule,
which in its operation, is limited to the properties of the parents.

80. Ob;iously, appellants 2 to 6 were born prior to the date on which
F
amendments were introduced in Section 16(1), and consequently they
would, notwithstanding that the marriage between their parents had taken
place at a time when there was a legislative prohibition on the second
marriage, be treated as legitimate, and would, therefore inherit the proper-
ties of their father, Raman Nair, under Section 16(3) of the Act.
G
81. In the result, all the three appeals are allowed. Respondents' Suit
No. 38 of 1976 for exclusive possession of certain items of property is
dismissed. The other Suit, namely, O.S. No. 39 of 1976 for partition of half
share in the tenancy land, filed by the respondents against appellant No. l
H alone, is also dismissed. It will, however, be open to them to seek such
P.E.K. KALLIANIAMMA v. K.DEVI [S.SAGHIRAHMAD,J.] 35

relief as may be available to them under law. D.S. No. 99 of 1977 filed by A
appellants is decreed with the finding that the appellant No. 1 being v!idow
and appellant No. 2 to 6 being sons of Raman Nair, are entitled lo their
share in the properties left by him. It is on this basis that the trial court
shall now proceed to complete the proceedings in this suit for partition,
Appellants shall be entitled to their costs. B
v.s.s. Appeals allowed.