ORDER
K.T. Thomas, J.
1. This revision raises a nice, but important question as to the interpretation of Section 19 of the Indian Divorce Act, 1869 (for short 'the Act').
2. The revision arises from a proceeding Under Section 125 of the Code of Criminal Procedure (for short 'the Code'). The facts are these : A husband learnt a few months after his marriage that his wife was pregnant at the time of marriage. The wife gave birth to a full grown child about seven months after the marriage. As the husband refused to maintain the wife and child, a claim was made against him by the wife for maintenance allowance Under Section 125 of the Code. The claim was resisted by the husband contending, inter alia, that his marriage was null and void ab initio since his consent for marriage was obtained by fraud in that the wife concealed the vital information from him that she was pregnant through another man. His further case is that the wife had confessed to him later, after marriage, that she was pregnant at the time of marriage through another person. The Chief Judicial Magistrate accepted the contention and held that the marriage has no validity under law. Consequently the wife was non-suited. The Sessions Judge, in revision, reversed the finding and held that her pregnancy was caused by the husband himself and that he knew about it even before marriage. Accordingly, the husband was directed to pay maintenance allowance to the wife and child. This second revision is hence at the instance of the husband. For the sake of convenience the husband will hereinafter be referred to as the petitioner.
3. It is not disputed that the petitioner has not obtained a decree declaring his marriage null and void. The stand of the petitioner is that when the marriage is null and void, there is no legal marriage in the eye of law and hence it is immaterial that a decree of nullity has been obtained and that the Magistrate exercising jurisdiction Under Section 125 of the Code is competent to decide the question regarding nullity of marriage. If evidence is adduced to his satisfaction, that the consent for the marriage was obtained by fraud, the Magistrate has a duty to treat the marriage as void, contended the counsel. The Chief Judicial Magistrate was persuaded to uphold the aforesaid stand of the petitioner on the strength of a decision rendered by a Full Bench of Bombay High Court in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav 1983 Cri LJ 259 and also on the decisions in Santhakumari v. Padmanabhan 1985 Ker LT 42 and Amina v. Hassan Koya 1985 Ker LT 596 : 1985 Cri LJ 1996.
4. The learned Counsel for the petitioner contended that the learned Magistrate went wrong in taking the view that he has jurisdiction to decide whether a marriage is null and void without a decree being passed either by a District Court or by the High Court Under Section 19 of the Act. The counsel contended further that the decisions relied on by the learned Magistrate do not afford any help in determining the crucial question involved in this case, since those decisions dealt with cases coming within the purview of either the Mohammedan Law or the Hindu Marriage Act, 1955. In Santhakumari's case (cited supra), a learned single Judge of this Court stressed the point that the Court exercising powers Under Section 125 of the Code cannot shelve the question raised and direct the parties to approach a Civil Court to settle the dispute as 'it is a statutory mandate to the Court to decide on the materials available whether the applicant is entitled to be maintained or not'. The learned single Judge held that the Court fails to discharge the statutory obligation when it refuses to decide the cardinal questions regarding factum and validity of the marriage or the paternity of the child. In that case the party against whom the claim was made disputed the factum of marriage and the Sessions Court in revision, without considering the case on merits, directed that the question of marriage will be decided by the Civil Court. It was in that context that the learned single Judge highlighted the responsibility of the Court to decide the question of the factum and validity of marriage. In Amina's case (1985 Cri LJ 1996) (cited supra) a Division Bench of this Court considered the validity of a marriage under Mohammedan Law. The question was whether the marriage of a Mohammedan male with a Mohammedan female who was pregnant through another person is invalid, void or irregular. But neither of the said two decisions considered the question whether the absence of a decree for nullity of marriage would be a hurdle for treating the marriage null and void.
5. However, this question came up for consideration before the Full Bench of the Bombay High Court in Yamunabai's case (1983 Cri LJ 259) (cited supra). The Full Bench was called upon to decide the question whether a woman is entitled to claim maintenance Under Section 125 of the Code when the person, against whom the claim is made, had a wife living at the time of the marriage between the claimant and the respondent. The marriage in that case was governed by the provisions of the Hindu Marriage Act, 1955. Under Section 11 a marriage in contravention of Section 5(1) of the said Act is null and void. Section 11 provides that a petition can be filed for a decree declaring the marriage null and void. But no such petition had been filed by any of the parties in that case and hence it was contended that until the passing of a decree, the marriage cannot be treated as null and void. The contention was not accepted by the Full Bench which observed that 'the fact that Section 11 provides for filing of a petition by either party to have the marriage declared null and void by a decree of nullity did not make the marriage valid till the decree was passed as was the case in voidable marriages Under Section 12 of the Act as in such a case obtaining of a decree of nullity was not a condition precedent for the marriage being null and void.' After discussing the relevant provisions of the Hindu Marriage Act, the Full Bench drew a distinction between marriages which are void ipso jure, and marriages which are voidable at the instance of one of the parties. Of course marriages which are void ipso jure could also be declared as void Under Section 11. A marriage solemnized in contravention of Section 5(1) of the Hindu Marriage Act is included in the category of void marriages. If the marriage is void, according to the said decision, the Magistrate also has jurisdiction to decide that the marriage is void even though no decree declaring the marriage null and void has been passed Under Section 11.
6. But the real question involved in this revision is different, though the difference is tenuous. The question whether a marriage governed by the Act can be treated as null and void, without a decree Under Section 19 of the Act, has to be examined under the provisions of the Act. Decisions concerning Hindu Marriage Act and Mohammedan Law are distinguishable in view of the difference in language in the provision concerned.
7. Jurisdiction is conferred on the High Court and in certain cases on the District Court for making a decree for declaration that a marriage is null and void as per Section 19 of the Act. In this context it would be advantageous to extract Sections 18 and 19 of the Act.
Section 18, Petition for decree of nullity :- Any husband or wife may present a petition to the District Court or to the High Court, praying that his or her marriage may be declared null and void.
Section 19. Grounds of decree.- Such decree may be made on any of the following grounds:-
(1) that the respondent was impotent at the time of the marriage and at. the time of the institution of the suit;
(2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.
8. A husband or wife can approach the District Court for a declaration on one of the four grounds enumerated in the former part of Section 19 : The first ground is, impotency at the time of marriage and at the time of institution of the suit. The second ground is that the parlies are within the prohibited degree of consanguinity or affinity. The third ground is lunacy or idiocy at the time of marriage, and the fourth is that one of the spouses should have had an earlier valid marriage which subsists at the time of the impugned marriage. But only the High Court has jurisdiction to declare a marriage null and void on the ground that the consent of the other party was obtained by force or fraud, and a decree can be passed only on application by one of the spouses. What is the legal position if neither of the spouses files the application before the District Court or the High Court as the case may be The position needs careful examination.
9. The first ground mentioned in Section 19, namely, impotency, has two postulates. The respondent should have been impotent at the time of marriage and he should be impotent at the time of institution of the petition as well as the latter condition is inextricably annexed to the date of filing of the application Under Section 19 of the Act, its corollary is explicit that a marriage on the ground of impotency of one of the spouses cannot be treated as null and void by any Magistrate unless there is a decree passed by the District Court or High Court. Impotency at the lime of filing of the application Under Section 19 of the Act is as crucial as impotency at the time of marriage, and hence no Court can treat or declare such a marriage as null and void, other than the Court before which the application is filed Under Section 19 of the Act. An impotent spouse can, sometimes, gain potency due to hormonal improvement or special medical care during the subsistence of marriage and such a spouse may successfully resist a suit Under Section 19. Regarding the second and fourth grounds mentioned above (parties being within the 'prohibited degree of consanguinity and subsistence of an earlier valid marriage) parties cannot improve the position however, much they jointly venture, and even if both of them agree to continue the marriage alliance. This is because a subsequent resolve to continue the marriage cannot cure the initial defect. In such cases the declaration Under Section 19 is, in effect, judicial recognition of a reality which is beyond the scope of rectification. But the third ground (lunacy or idiocy at the time of marriage) presents some difficulty. A hypothetical example can be mentioned to illustrate the difficulty. In a case where one of the spouses was a lunatic at the time of marriage, but the other spouse was ignorant of it; children are born in the wedlock, a few years after the other spouse discovers that his partner was insane at the time of marriage, but that discovery does not detract him or change his attitude towards his spouse. If he wants to continue the alliance, can it be said that he is helpless since the marriage was null and void beyond repair If the same spouse, in his desire to avoid disintegration of his family, opts to continue the alliance, can it be said that the law cannot help him in preserving the unity and integrity of his family If the answer is in the negative, the consequences would be hard. It would lead to preposterous situations. Similarly, if one of the spouses discovers later that he consented for the marriage on a mistaken identity of his bride, but he is willing to continue the wedlock with the one whom he married, should not the alliance be allowed to continue with all legal incidences attached thereto To say that such a marriage is irretrievably non est is a lamentable expression of disoriented pedantry in interpretation of law.
10. In order to save such marriage from the sweep of perennial nullity and to prevent absurd and unreasonable consequences on account of rigid or literal interpretation, a purposeful interpretation, if permissible under law, must be given to the section. Interpretation of words must be in such a manner as to achieve the spirit of the legislation, provided such an interpretation is not inhibited by any other indication in the statute itself. Supreme Court observed in Manohar Nathurao Samarth v. Marotrao : [1979]3SCR1078 thai a policy-oriented understanding of a legal provision which does not do violence to the text or the context gains preference as against a narrow reading of the words used. 'The strictly literal may not often be logical if the context indicates a contrary legislative intent. Courts are not victims of verbalism but are agents of the functional success of legislation, given flexibility of meaning, if the law will thereby hit the target intended by the law-maker. Here the emphasis lies on the function, utility, aim and purpose which the provision has to fulfil. A policy-oriented understanding of a legal provision which does not do violence to the text or the context gains preference as against a narrow reading of the words used.' In another decision, the Supreme Court reaffirmed the same principle in a different language in State of Madhya Pradesh v. Shri Ram Ragubir Prasad Agarwal (1979) 4 SCC 686 : AIR 1979 SC 888. The emphasis therein is that 'language permitting, the appropriate interpretational canon must be purpose oriented'. Meaning of some words in a statute may be enlarged or restricted in order to harmonise them with legislative intent of the entire statute. It is the spirit of statute which should govern the literal meaning. In a recent decision, the Supreme Court emphasised the need for giving purposeful interpretation 'so as to effectuate the intention of the legislature and not a purposeless one in order to defeat the intention of the legislators wholly or in part'. Vide State of Kerala v. Varghese (1987) 1 Ker LT 62 : 1987 Cri LJ 308 (SC)). It is not the literal meaning of the words but that meaning which is warranted from the context is the one to be preferred. In fact every word can have two meanings - its denotation and connotation. In the latter, a word has to be understood by its association with other words. These principles have to be borne-in-mind when the contextual meaning of the word 'void' in the relevant provision is determined while interpreting the provision.
11. The word 'void' in Section 19 shall, subject to context, mean 'voidable' as well. Sir John Solomond in his everlasting work 'Jurisprudence' (at page 355 of the 10th Edition) draws the thin line of difference between 'void' and 'voidable' as this : A 'void' agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute of legal efficacy. But a 'voidable' agreement is that which 'by reason of some defect in its origin is liable to be destroyed or cancelled at the option of one of the parties to it. On exercise of this power, the agreement not only ceases to have any efficacy, but it is deemed to have been void ab initio. The avidence of it relates back to the making of it.' In other words, what is voidable is void or valid depending upon the election of the party concerned. This view gained judicial recognition by the majority in the Full Bench decision in Mathew v. Ayyappankutty : AIR1962Ker164 '. 'The expression is often used: 'void as against' a person or persons. A thing cannot be void and valid at the same time. As 'void' denotes a nullity, a thing which is void totally nonexistent. Therefore, void as against A can mean only that A can treat it as void; or, in otherwords, A can avoid it. It is strictly speaking, voidable at the option of A'.
12. If the initial defect is not curable by subsequent concurrence, as in the case of subsistence of an earlier marriage, or in the case of a marriage between parties within prohibited degree of consanguinity, the marriage is void irrespective of whether the same is avoided or not by other party concerned. But if that defect is curable by concurrence the marriage becomes void only if it is avoided as in the case of insanity at the time of marriage, or want of voluntary consent for the marriage. So the word 'void' in Section 19 is susceptible to the above two connotations depending upon the context. Therefore, the purposeful interpretation is that such a marriage is null and void when the aggrieved spouse elects to avoid it.
13. The next point to be considered is, what is the mode of avoidance of a voidable marriage. The statute which affords grounds to have a marriage declared as null and void may also provide the procedure and forum for it. When the procedure is so laid down by the statute, recourse must be had to that procedure to avoid voidable marriages. It is not enough that the affected person makes a pronouncement that he disowns the marriage, nor would it be sufficient to take up a defence, however strongly it is made, in an action based on such marriage. As the Act provides the forum to be resorted to and the procedure to be pursued, no other mode of avoidance will have the sanction of law. The only remedy of the affected party is to avoid it through the procedure laid down in Section 19 of the Act. Until it is so avoided the voidable marriage remains unaffected. But if the marriage is void, not merely voidable, in that no election or option by the other spouse would cure the initial defect, it does not matter if the procedure provided in the statute is not resorted to. In such case it is open to the Magistrate to enter upon a finding that the marriage is null and void, even in the absence of a decree Under Section 19 of the Act.
14. In the present case, the marriage cannot be treated as null and void without a decree being passed by the High Court. Hence the petitioner continues to be the husband of the first respondent. It follows from the legal presumption as well, that the petitioner is the father of the child born to the first respondent. Accordingly, this Crl. Revision Petition is dismissed.