Justice L.M. Sharma and Justice M.M Punchhi
Whether a petition for nullity of marriage is maintainable even after death of one spouse u/s 11 (before amendment) of Hindu Marriage Act, 1955 ?
It was contended that for declaring a marriage as null, it is important for both the parties to be present to dissolve the marriage in accordance to Section 11 of HMA after its amendment in 1976.
It was contended that as per Section16 before the amendment, the children of the respondent won't be entitled to the status of legitimate if no decree is given for the nullity of marriage.
The Supreme Court dismissed the appeal. The present proceeding was started in 1974. It was held that an application u/s 11 before amendment, 1976 is maintainable even after the death of the other party.
The court observed that the wife indeed has the right to defend herself against the allegations of adultery. However, she doesn't have the right to go beyond defending & contend that her husband needs psychological treatment. In view of her statements, it cannot be possibly expected from the husband to live with her. Mental cruelty has been caused & therefore, the divorce was granted.
“The intention of the legislature in enacting Section 16 was to protect the legitimacy of the children who would have been legitimate if the Act had not been passed in 1955. There is no reason to interpret Section 11 in a manner which would narrow down its field. With respect to the nature of the proceeding, what the court has to do in an application under Section 11 is not to bring about any change in the marital status of the parties. The effect of granting a decree of nullity is to discover the flaw in the marriage at the time of its performance and accordingly to grant a decree declaring it to be void.”
-Para 10 (Maharani Kusumkumari And Anr. v. Smt. Kusumkumari Jadeja And Anr.)