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Judgment
Chandra Reddy, C.J.—The question that is posed by this Civil Miscellaneous Appeal is whether Section 4(1) of the Hindu (Bigamy Prevention and Divorce) Act, 1949 (VI of 1949), which declares a marriage in certain conditions void and punishable, could be availed of by one of the parties to such a marriage for getting that marriage declared to be null and void after this law has been repealed.
It arises in the following circumstances. The first respondent, who was already married, took the appellant, his sister''s daughter, as his second wife on 27-11-1950. Several years thereafter, i.e., on 25-4-1959, he filed a petition u/s 4(1) of the Madras Act VI of 1949 read with Section 29(3) of the Hindu Marriage Act, 1955 (22 of 1955) for a declaration that his second marriage was void and of no legal effect for the reason that he had his first wife living at the time of the second marriage.
The petition was chiefly resisted on the objection that Section 4 was unavailable to the first respondent for the reason that it was no longer in operation and that it did not enable one of the spouses to obtain a declaration that their marriage was null and void.
This plea did not appeal to the trial Court with the result that the prayer asked for in the petition was granted. It is this order that is under appeal now.
It may be mentioned here that there was no dispute that the marriage was void as, admittedly, at that time, the first wife of the first respondent was alive.
It is urged by Sri Ramachandra Reddy, learned Counsel for the appellant, the wife, that Section 4 of Act VI of 1949 did not confer any right on either of the spouses to obtain a declaration that the marriage was void and punishable. That section renders such marriage ipso facto void and does not contemplate any petition being filed for obtaining such a declaration. That being the correct position of law, it was not competent for the first respondent to invoke Section 4(1) to obtain the relief of declaration, continues the learned counsel.
There is substance in this contention. Section 4(1) reads as follows :
"Notwithstanding any rule of law, custom or usage to the contrary, any marriage solemnized after the commencement of this Act between a man and a woman either of whom has a spouse living at the time of such solemnization shall be void, whether the marriage is solemnized within or outside the State of Madras."
It is plain from this Section that it does not give any right to either of the spouses to present a petition for nullifying the marriage. By operation of this section, the marriage automatically becomes null and void. If that were so, the husband, who was himself guilty of the offence of bigamy, could not resort to Section 4 for the purpose of getting a declaration.
In this view of the matter, it is unnecessary for us to consider whether Section 29(3) of the Hindu Marriage Act 1955 would come to the rescue of the first respondent, although, prima facie, it appears to us that the expression "dissolution of marriage" would not take in a declaration that the marriage is null and void. Dissolution of marriage implies the existence of a valid marriage and it could have no reference to a marriage which is ab initio void. However, it is unnecessary for us to express any final opinion on this question.
This does not, however, stand in the way of the first respondent pursuing such remedies as are available to him under the ordinary law to obtain such reliefs as are open to him.
In the result, the appeal is allowed and the order of the Subordinate Judge, Guntur, is set aside. There will be no order as to costs.