R1IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE13H DAY OF APRIL, 2023 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM R.S.A NO.7044 OF2009(DEC & INJ) BETWEEN: BASAVARAJ ALIAS SHIVABASAPPA S/O SHARANAPPA MANKAR AGE: ABOUT16YEARS MINOR REPRESENTED BY GUARDIAN NATURAL FATHER SHIVARAYA S/O CHANNABASAPPA MANKAR AGE:
46. YEARS OCC: AGRICULTURE R/O HALCHAIR OF TALUKA CHINCHOLI DISTRICT: GULBARGA – 585228 ...APPELLANT (BY SRI.SANJEEVKUMAR C.PATIL, ADVOCATE) AND:
1. SARSWATHI W/O SHARANAPPA MANKAR AGED:
45. YEARS OCC: HOUSEHOLD R/O VILLAGE HALCHAIR TALUKA CHINCHOLI DISTRICT: GULBARGA – 585 228 2 2. IRAMMA W/O SHARANAPPA MANKAR AGE:
50. YEARS OCC: HOUSEHOLD R/O HALCHAIR TALUKA: CHINCHOLI DISTRICT: GULBARGA – 585 228 …RESPONDENTS (BY SRI.S.S.SIDHAPURKAR, ADVOCATE FOR R.1; R.2 – SERVED) THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE JUDGMENT
AND DECREE DATED1301.2009 PASSED IN R.A.NO.22/2008 ON THE FILE OF THE CIVIL JUDGE (SR. DN.) AT CHINCHOLI DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED2406.2008 PASSED IN O.S.NO.157/2003 ON THE FILE OF THE CIVIL JUDGE (JR. DN.) AT CHINCHOLI. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON0812.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
This captioned second appeal is filed by the appellant - 2nd defendant questioning the concurrent findings of the Courts below, wherein plaintiff’s suit seeking relief of declaration to declare plaintiff and 1st defendant as joint 3 owners and further to declare that adoption of 2nd defendant by defendant No.1 and late Sharanappa Mankar as null and void and not binding on the plaintiff and defendant No.1 and for consequential relief of permanent injunction is decreed by both the Courts by holding that the adoption of 2nd defendant by defendant No.1 and late Sharanappa Mankar is null and void as the same is secured without getting consent of plaintiff, who is the second wife of late Sharanappa Mankar.
2. For the sake of brevity, the ranks of the parties are referred as they are ranked before the Trial Court.
3. The facts leading to the case are as under; Plaintiff claims that she is the second wife of one Sharanappa Mankar s/o Mallakajappa Mankar. It is claimed that husband of plaintiff and 1st defendant died on 22.06.2003. Plaintiff claims that she along with defendant No.1 are the only legal heirs and as Sharanappa died 4 intestate, they have inherited the suit schedule properties under Section 8 of the Hindu Succession Act, 1956 (for short "Succession Act, 1956"). The plaintiff further claimed that 2nd defendant is a distant relative of the plaintiff and 1st defendant and is no way concerned to the 1st defendant and plaintiff’s family. The plaintiff has further alleged that 1st defendant and her husband late Sharanappa have suffered a compromise decree at the hands of the 2nd defendant in O.S.No.29/2003. The compromise recorded in O.S.No.29/2003 is a concocted and collusive decree only to deprive the plaintiff’s inheritable rights in the suit schedule properties. Plaintiff further pleaded that since Sharanappa did not secure consent of plaintiff at the time of alleged adoption, the adoption is hit by Section 7 of Hindu Adoptions and Maintenance Act, 1956 (for short "Adoptions Act, 1956") and therefore, sought relief of declaration to declare that the adoption of 2nd defendant is invalid and therefore, 5 2nd defendant will not acquire any right in the properties left behind by late Sharanappa.
4. 2nd defendant, who claims to be adopted son of 1st defendant and late Sharanappa tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. 2nd defendant claimed that 1st defendant and deceased Sharanappa have admitted that 2nd defendant is their adopted son and accordingly, a joint compromise petition was filed in O.S.No.29/2003 and decree was passed in terms of the joint compromise petition and therefore, the status of 2nd defendant was resolved and admitted by the adoptive parents of 2nd defendant in O.S.No.29/2003 and the same having attained finality, plaintiff, who is the second wife, has no locus to question the 2nd defendant’s status of an adopted son of 1st defendant and late Sharanappa. 6
5. 1st defendant, who is the first wife of late Sharanappa, supported the 2nd defendant by filing a memo thereby adopting the written statement filed by 2nd defendant.
6. The plaintiff and 2nd defendant to substantiate their respective claims have let in oral and documentary evidence. The Trial Court having examined the pleadings and the evidence let in by both the parties, however, answered issue Nos.1 to 4 in the Affirmative. While answering issue No.1 in the affirmative, the Trial Court held that the adoption of 2nd defendant by Sharanappa is without securing consent of plaintiff. The Trial Court was of the view that the compromise recorded in O.S.No.29/2003, wherein 2nd defendant’s status that he is the adopted son was admitted, is not binding on the plaintiff as she was not a party to the said suit. Therefore, the Trial Court proceeded to decree the suit declaring that 2nd defendant cannot claim that he is the adopted son, as the adoption was without the consent of plaintiff, who is also one of the wife of late Sharanappa. Consequently, the Trial Court 7 has also held that the compromise decree passed in O.S.No.29/2003 is a collusive decree and therefore, the plaintiff and 1st defendant being legal heirs of the deceased Sharanappa are entitled to inherit the properties left behind by late Sharanappa. Consequently, the suit is decreed.
7. Feeling aggrieved by the judgment and decree of the Trial Court, 2nd defendant preferred an appeal before the Appellate Court. The Appellate Court has independently assessed the evidence on record. The Appellate Court while examining the pleadings in the plaint as well as in the written statement held that the plaintiff is the second wife and therefore, proceeds to hold that the marriage of plaintiff with late Sharanappa is a void marriage and declined to confirm the status of a wife on plaintiff. But, however, referring to the provisions relating to inheritance under the "Succession Act, 1956" and also the provisions of "Adoptions Act, 1956", the Appellate Court was of the view that these two Acts would over ride the provisions of the Hindu Marriage Act, 1955 8 (for short "Marriage Act, 1955") and since the provisions of "Adoptions Act, 1956" contemplates that a male Hindu while taking in adoption has to seek consent of a wife living would render the adoption invalid and therefore, proceeded to dismiss the appeal.
8. Feeling aggrieved by the concurrent findings of the Courts below, it is the 2nd defendant, who is before this Court. This Court vide order dated 19.06.2009 was pleased to admit the appeal on the following substantial questions of law.
1. Whether in the facts and circumstances of the case, the Courts below were justified in holding that consent of the second wife i.e., the plaintiff is necessary for the valid adoption in view of Section 5 of the Hindu Marriage Act?.
2. Whether in the facts and circumstances of the case, the Appellate Court was justified in relying upon the provisions of Section 8 of the Hindu Succession Act to a case governed by the 9 provisions of the Hindu Adoptions and Maintenance Act?.
9. Heard learned counsel appearing for the appellant - 2nd defendant and learned counsel appearing for the plaintiff.
10. The short point that needs consideration at the hands of this Court is; "Whether plaintiff, who is admittedly a second wife, has a locus to seek a relief of declaration against the 1st defendant, who is the legally wedded wife of late Sharanappa and 2nd defendant who is held to be the adopted son of late Sharanappa in the light of compromise decree passed in O.S.No.29/2003?.
11. The word ‘widow’ mentioned among Class-I heirs in the schedule to Section 10 of "Succession Act, 1956" would clinch the entire controversy between the parties. The reported judgment rendered by the Co-ordinate Bench of this 10 Court in the case of LAXMIBAI VS. ANASUYA1 would throw lot of light in regard to the controversy that has arisen for consideration before this Court. In the judgment cited supra, the question that was raised was as to whether a widow whose marriage is held to be void would acquire a status of widow by virtue of death of her husband. The Co-ordinate Bench, while examining the facts and circumstances of the said case, however, held that if a Hindu Female contracts a marriage during subsistence of first marriage, then the said marriage is not valid and same is void. Therefore, on the death of her husband, the second wife would not get the status of a widow. The Court has also made a distinction in regard to a Hindu male contracting two marriages prior to codification as there was no prohibition for Hindu marrying more than one wife, before "Succession Act, 1956" was brought in to force. It is in this context, this Court held that it is possible that a male could have married more than one wife and therefore, widows of a Hindu male leaving behind two 1 ILR2013KAR52911 wives whose marriages were valid before coming into operation of "Succession Act, 1956", the status of second wife being legal, would acquire a status of a widow and therefore, she is entitled to inherit the properties in terms of Section 10 of the "Succession Act, 1956".
12. The Appellate Court has proceeded on an assumption that the provisions of "Succession Act, 1956" would prevail over the provisions of "Marriage Act, 1955" and the finding, prima-facie, is found to be patently erroneous. The Appellate Court has wrongly dealt with the provisions of the "Marriage Act, 1955", "Adoptions Act, 1956" and "Succession Act, 1956". For a valid adoption, "Adoptions Act, 1956" contemplates the capacity of a male Hindu to take in adoption subject to conditions enumerated in proviso to "Adoptions Act, 1956".
13. Section 7 of the "Adoptions Act, 1956" reads as under, 12
"7. Capacity of a male Hindu to take in adoption : - Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption; Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
14. Section 5(i) of the "Marriage Act, 1955" reads as under; 5. Conditions for a Hindu Marriage:- 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; 13 15. Section 11 of the "Marriage Act, 1955" declares marriages void, if it contravenes any of the conditions specified in clauses (i), (iv) and (v) of Section 5 of the "Marriage Act, 1955". Section 11 of the "Marriage Act, 1955" reads as under; 11. Void marriages :- Any marriage solemnised after the commencement 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 conditions specified in clauses (i), (iv) and (v) of Section 5.
16. Now, let me examine Rule 1 of Section 10 of the "Succession Act', 1956", which is relevant to the present case on hand, which reads as under; 10. Distribution of property among heirs in class I of the Schedule:- The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:- 14 Rule 1. The intestate's widow, or if there are more widows than one, all the widows together, shall take one share.
17. The provisions relating to a void marriage coupled with the definition of a void marriage and the requisite condition that is imposed on a Hindu male while taking in adoption are to be read conjointly. The Appellate Court's view that provisions of Section 10 of the "Succession Act, 1956" would prevail over Section 5 and Section 11 of the "Marriage Act, 1955" is not supported by any precedents or law. The rights of a wife over husband's property are governed under the "Marriage Act, 1955" and "Succession Act, 1956" respectively. However, the dynamics may vary in the case of second wife. The rights of a second wife on her husband's property, if found to be in contravention of "Marriage Act, 1955", is no more res integra. Though a wife is entitled to succeed to the estate of her husband under "Succession Act, 1956", there are several nuances involved. If the husband 15 remarries during subsistence of first marriage, the rights of a second wife can be challenged, if they do not meet the legal criteria. To determine the rights of a second wife, we must first examine the legality of second marriage. The "Marriage Act, 1955" prohibits bigamy. The Act specifies that, at the time of second marriage, none of the parties should be legally married and both the parties must end their previous marriage so as to remarry. Therefore, if this condition is not met, the second wife does not have a right to claim any share in the property of a husband. Therefore, if husband's remarries without ending the previous marriage and first wife is alive when the second marriage is contracted by husband, a second wife post codification will not acquire a status of a wife or a widow. As per "Marriage Act, 1955", remarriage without legal culmination of the first marriage is illegal. If marriage is illegal, the second wife will not acquire a status of a wife or a widow. Therefore, a second wife will not inherit the property 16 rights nor she is competent to give consent under "Adoptions Act, 1956".
18. The usage of the expression "may" in Section 5 of the "Marriage Act, 1955" does not make the provision of Section 5 optional. Section 5 in positive terms indicates that a marriage can be solemnised between two Hindus only if the conditions are fulfilled. Under Sections 5 and 11 of the "Marriage Act, 1955" a second marriage with a previous married wife living is null and void. If marriage of the plaintiff in the present case on hand is null and void, both the Courts erred in entertaining the plaintiff's suit.
19. The wordings found in Section 10 of the "Succession Act, 1956" that in the event there are more widows than one, all the widows together shall take one share refers to the marriages solemnised before codification of Hindu Law. Therefore, a female, whose marriage is void-de-jure and surviving the death of her husband, would not be covered by 17 the term widow either in Class-I of Schedule or anywhere such a reference occurs in all the Acts. An "illegitimate wife" cannot at all be considered as having entitlement to inherit or succeed under any of the provisions of the "Succession Act, 1956", "Marriage Act, 1955" or "Adoptions Act, 1956.
20. Now, let me examine the facts of the present case on hand. Plaintiff has nowhere claimed that her marriage was solemnized prior to codification of Hindu Law. Therefore, it necessarily implies that her marriage was during subsistence of first marriage. In plaint, she has specifically admitted that she is second wife. Therefore, the condition imposed in "Adoption Act, 1956" imposing a pre-condition that a male Hindu while taking in adoption has to seek consent of his wife would not include a second wife whose marriage was admittedly a void marriage. If plaintiff’s marriage is held to be a void marriage, then she would not acquire a status of a widow or wife and therefore, she would not fall within the definition of a 'living wife' as indicated in Section 7 of the 18 "Adoptions Act, 1956". The consent of all the wives as indicated in explanation to "Adoptions Act, 1956" would not include a wife or a widow whose marriage is void.
21. The Appellate Court though holds that the marriage of plaintiff is a void marriage, but, however, wrongly interprets "Adoptions Act, 1956" and also the provisions of the "Succession Act, 1956" and proceeds to assume that Sharanappa failed to seek consent of plaintiff, who is the second wife and proceeds to hold that adoption is invalid and therefore, 2nd defendant on account of invalid adoption will not acquire any right in the family of the plaintiff and 1st defendant.
22. These findings recorded by both the Courts are patently erroneous and contrary to settled proposition of law. It is a trite law that if a person contracts 2nd marriage during subsistence of 1st marriage and after codification, the said marriage is held to be a void marriage and therefore, the 19 second wife will not get any right and therefore, the "Marriage Act, 1955" cannot confer a status on second wife either for the purpose of inheritance or for the purpose of seeking an consent to adopt a child. The word plural used in Section 10 of the "Succession Act, 1956" cannot be extended to the present plaintiff and she cannot assert and claim to be widow of Sharanappa as her marriage itself was a void marriage and therefore, she would not acquire the status of a widow as indicated in Section 10 of the "Succession Act, 1956".
23. Courts should not deal separately with the terms of an enactment, which is in its nature composite. The Courts are bound to avail to themselves, as an aid to construction, while interpreting the construction of provisions of the "Marriage Act, 1955", "Adoptions Act, 1956" and "Succession Act, 1956."
It is clear from the preamble of "Marriage Act, 1955" that it is intended by Act not merely to amend but to amend and codify the law relating to marriage among Hindus. The object of codification of a particular branch of law is that, any matter 20 specifically dealt with by it should be sought for in the codified enactment itself. Plaintiff has admitted in unequivocal terms that she is the second wife while first defendant is the first wife. Therefore, marriage of plaintiff is clearly hit by section 5(1) of "Marriage Act, 1955". Therefore, this Court is of the view that the Appellate Court has virtually misinterpreted Rule 1 of Section 10 of "Succession Act, 1956". Before coming into force of "Succession Act, 1956", there was no bar for a Hindu male to marry more than one female person, but after coming into force of "Succession Act, 1956", second marriage during the subsistence of a first marriage is void ab initio. Rule 1 infact encompasses and takes into account such a person, who had married during the subsistence of latter's valid marriage. Therefore, plaintiff cannot be treated as widow of one late Sharanappa. The plaintiff has not acquired legal status of wife. She will not inherit the properties of her husband under "Section 8 of Succession Act, 1956". For that, she will also not fall within the definition of 'widow' as indicated in Rule 1 of 21 Section 10 of "Succession Act, 1956". If plaintiff's marriage is found to be void ab intio, it is only the first defendant, who is competent to give consent. Material on record indicates that the first defendant has given consent. Therefore, the provisions of "Adoptions Act, 1956" is duly complied and plaintiff has no locus to question the adoption of second defendant. Both the Courts have not properly examined the provisions of all the three Acts which are culled out supra. The findings and conclusions recorded by the Courts below suffer from perversity and also from serious infirmities. The reasons assigned by the Appellate Court are also found to be patently erroneous.
24. Therefore, the concurrent findings recorded by both the Courts in declaring that plaintiff’s consent was not secured by late Sharanappa and 1st defendant, is palpably erroneous, perverse and suffers from serious infirmities. Plaintiff, who is the second wife, post codification of Hindu Law would not 22 acquire a status of a wife or a widow and as such, question of seeking consent would not arise in the present case on hand.
25. Both the Courts erred in holding that plaintiff being the second wife, her consent was necessary for valid adoption in view of "Marriage Act, 1955". The said findings are perverse, palpably erroneous and the said findings are not at all sustainable. Both Courts erred in relying on provision 8 of the "Succession Act, 1956" ignoring the fact that the plaintiff would not acquire a status of a widow and therefore, both substantial questions of law are liable to be answered in the Negative and against the plaintiff.
26. For the reasons stated supra, I pass the following; ORDER
(i) The Regular Second Appeal is allowed. (ii) The judgment and decree dated 13.01.2009 passed in R.A.No.22/2008 on 23 the file of the Senior Civil Judge, Chincholi confirming the judgment and decree dated 24.06.2008 passed in O.S.No.157/2003 on the file of Civil Judge (Jr. Dn.) at Chincholi is set aside. (iii) The suit filed by the plaintiff in O.S.No.157/2003 is dismissed. Sd/- JUDGE NBM