# KALLIANI AMMA AND ORS v. K. DEVI AND ORS

- **Citation:** [1996] Supp. 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1996-04-26
- **Case number:** Civil Appeal Nos. 5473-75 of 1995
- **Bench:** Kuldip Singh, S. Saghir Ahmad
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kalliani-amma-and-ors-v-k-devi-and-ors-14267
- **Pages:** 35

## Headnote

Hindu law:
Hi11du Maniage Act, 1955: Section 16.
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
B
c
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 contracted 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Section 5---Polygamy-Void unde1~Act repealed by S. 7(2) of Kera/a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 :
1
H
A
B
2
SUPREME COURT REPORTS. [1996] SUPP. 2 S.C.R.
Statute-Constitutionality of-Presumption in favour of-Burden of
proof is on person challenging constitutionali~To show arbitrary discrimination between persons siniilarly circumstanced--Presuniption-Displacing 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.
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.
•
D
E
Mischief Rule-Language having more than one meaning-Applicability of-Rule in Heydon's case-When and how lo be invokecf--Nonobstanle 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
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,
G
unless there \Vas any saving clause in the repealing enactment or any other
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
l I 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(

## Text

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-
SMT. PARAYANKANDIYAL ERA VATH KANAPRAVAN
A
KALLIANI AMMA AND ORS.
v.
K. DEVI AND ORS.
APRIL 26, 1996
[KULDIP SINGH AND S. SAGHIR AHMAD, JJ.]
Hindu law:
Hi11du Maniage Act, 1955: Section 16.
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
B
c
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 contracted 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 :
1
H
A
B
2
SUPREME COURT REPORTS. [1996] SUPP. 2 S.C.R.
Statute-Constitutionality of-Presumption in favour of-Burden of
proof is on person challenging constitutionali~To show arbitrary discrimination between persons siniilarly circumstanced--Presuniption-Displacing 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.
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.
•
D
E
Mischief Rule-Language having more than one meaning-Applicability of-Rule in Heydon's case-When and how lo be invokecf--Nonobstanle 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
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,
G
unless there \Vas any saving clause in the repealing enactment or any other
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
l I 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
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]
B
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.
1.2. Since.Jhe Rule of Legitimacy under Section 16 of Hindu Marriage 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
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
D
E
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]
B
State v. Narsu Appa Mali, ILR (1951) Bombay 775; S1i11ivasa Iyer v.
Saraswathi Amma/, ILR (1953) Madras 78 and G. Sambireddy v. G. Jayamma, AIR (1972) A.P. 156 referred to.
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
D
a la\\' \\
1hich protected the legitimacy of such innocent children. [26-E, G-H]
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 Act1 1955
11 by K.P. Saksena;
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 discrimination, 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:
(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
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
B
c
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. ComptrollerGe11eral 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.
B
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, nevertheless, be treated as legitimate nornithstanding that the marriage was
void or voidable. [33-H)
•
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
E
F
Mis. J K Cotton Spg. & Wvg. Mills Ltd. v. Union of India, AIR (1988)
SC 191, American Home Products Corporation v. Mac Laboratories, [1986)
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.
4. Appellants 2 to 6 were born prior to the date on which 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 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.
T.L. Viswantha Iyer, Ms. Pushpa Rajan and K.B.S. Rajan for the
Respondents.
The Judgment of the Court was delivered by
S. SAGHIR AHMAD, J. "A million million spermatozoa
All of them alive :
Out of their cataclysm but one poor
Noah
Dare hope to survive.
And aruong that billion minus one
Might have chanced to be
Shakespeare, another Newton, a new Donne.
But the one \vas me."
A
B
'C
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
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.
F
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 appelB !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.
c
D
E
5. All the three suits wer.e tried together by the trial court and were
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.
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
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
High Court was that if the benefit of legitimacy contemplated by Section
B
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
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
E
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
A
B
c
D
E
F
G
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.
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
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
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.
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
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.
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
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.
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
I
'
•
P.E.K KALLIANI AMMA v. K DEVI [S. SAGHIR AHMAD, J.]
11
the other so that separation becomes unthinkable.
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 :
'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.
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.
A
B
c
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, Ashwamedha and Rajsuya Yagas, tuladan and marriage."
"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 commerce 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.
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
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is of Arjun. Brahaspati is of Indra and as Swati is of Chatak."
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SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.
14. Once "Saptapadi" is completed the marriage tie becomes unbreakable.
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 :
'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."
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
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.
11With sorrow," says Daksha feelingly, ndoes he eat
who has two contentious wives; dissension mutual enmity, meanness, and pain distract his mind; but his commentator, Jagannath,
who lived at a time when kulinism and polygamy were widely
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, illtempcr, and misconduct of the wife.
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
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
disputes."
,..
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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 disapB
proved. Manu has justified the superscssion of the \Vifc and remarriage 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
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 :
11A wife, who
dr_inks any spurious liquors, who acts immorally, who shows hatred
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
eleventh and she who speaks unkindly, without delay." It is, thereE
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f nre. 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
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SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.
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, 101102; V, 162-168)." This passage clearly implies monogamy to be
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
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
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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.
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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.
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21. There is no dispute that Mr. Raman was a 'Nair' and belonged
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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 judicially recognised customs and usages, which prevailed among a considerable 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 customary 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
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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-lowsoever, 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.
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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
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SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.
A Act provides as under :
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"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.
(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.
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 prohibiD tion, Raman Nair contracted a second marriage with respondent No. 1 in
1948.
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24. The Maramakkattayam Act, 1932 was repealed by Section 7(2)
(read with the Schedule) of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) with effect from 1.12.1976. Obviously with
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
(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.
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26. Section 7 of the Kerala Joint Hindu Family System (Abolition)
·Act, 1975 (Act No. 30 of 1976) is reproduced below :
"7. Repeal - (1) Save as otherwise expressly provided in this Act,
.,
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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
repealed."
27. In the schedule appended to the Act, the Madras Act is mentioned at serial No. 1.
28. Section 4 of the Kerala Interpretation and General Clauses Act
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
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appears, the repeal shall not -
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(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
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(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) .. ..
(e) .... "
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
repealed, have been quoted above. The repealing Act does not indicate
any intention contrary to the provisions contained in the Kerala Interpretation and General Clauses Act which, therefore, will apply with full vigour
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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
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SUPREME COURT REPORTS [1996) SUPP. 2 S.C.R.
A
saving clause in the repealing enactment of any other intention was expressed therein. In the case of a simple repeal, there is hardly any room
for the expression of a contrary view.
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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
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 unaffected and will not be obliterated by the repeal as indicated in clause (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
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will the previous operation of the Act be affected by the repeal of that Act.
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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
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
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 discriminaG 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 background.
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35. Before the enactment of the Hindu Marriage Act, 1955 there
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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.