crimlnal appellate jurisdiction criminal appeal number
143 of 1975.
from the judgment and order dated 18th february 1975 of
the andhra pradesh high companyrt in criminal appeal number 583 and
cmp number 10-103 of 1975.

mookherjee and a. v. v. nair for the appellants. ram reddy and p. parameshwara rao for the
respondent. the judgment of the companyrt was delivered by
fazal ali j. five accused persons namely accused number
1 k. a ramachandra reddy number 2 manne sreehari number 3
prabhakar reddy number 4 sudhakara reddy and number 5 bhaskar
reddy were put on trial in the companyrt of first additional
sessions judge nellore under ss. 147 148 302/149 and
302/34 i.p.c. for having caused the murder of the decessed
venugopala reddy resident of rachakandrika village of
nellore district. the learned sessions judge after recording
the evidence of the prosecution and hearing the arguments
rejected the entire prosecution case and held that the
prosecution had miserably failed to prove the case against
any of the accused and he accordingly acquitted all the five
accused by his judgment dated july 25 1973. the state of
andhra pradesh thereafter filed an appeal under s. 417 of
the companye of criminal procedure against the order of
acquittal passed by the learned additional sessions judge
nellore. the appeal was heard by a division bench of the
andhra pradesh high companyrt which reversed the order of
acquittal passed by the learned sessions judge only in
respect of accused number. 1 2 and companyvicted them under s.
302/34 i.p.c. and sentenced them to imprisonment for life. the acquittal of the other accused number. 3 to 5 was companyfirmed
by the high companyrt. the two appellants namely k. ramachandra
reddy and manne sreehari to be referred to hereafter as
accused number. 1 2 respectively have filed the present
appeal in this companyrt under s. 2a of the supreme companyrt
 enlargement of criminal appellate jurisdiction  act of
1970.
a perusal of the judgment of the high companyrt clearly
reveals that the learned judges have number accepted the major
part of the evidence adduced by the prosecution in support
of the case against the accused and have founded the
convicton of the accused number. 1 2 solely on the basis of
ext. p-2 a dying declaration alleged to have been made by
the deceased venugopala reddy at dr. ramamurthi nursing home
before a magistrate the next day after he is said to have
been assaulted. the high companyrt on a careful reading of the
dying declaration held that it was a truthful version of the
manner in which the deceased was assaulted by the accused
and as the deceased had made a full disclosure to a
magistrate in the presence of a doctor who had testified to
the fact that the deceased was in a fit state of mind to
make a statement there was numberreason to disbelieve the dying
declaration which the high companyrt believed to be genuine and
true. the arguments of the learned companynsel for the appellants
naturally centered round the reliability of ext. p-2 the
dying declaration recorded by the magistrate at the nursing
home. appearing for the appellants mr. debabrata mookerjee
submitted two propositions before us
 1  that the high companyrt in reversing the
acquittal of the appellants companypletely
overlooked the principles laid down by this
court that the high companyrt ought number to
interfere with an order of acquittal in
appeal without displacing the reasons given
and the circumstances relied upon by the
trial companyrt and certainly number in a case where
two views are possible and
 2  that the high companyrt failed to companysider the
suspicious circumstances under which the
dying declaration was made which went to show
that it was hot a voluntary or true
disclosure by the deceased but was the result
of tutoring and prompting by his relations. on the other hand mr. ram reddy the senior standing
counsel for the state of andhra pradesh submitted that the
high companyrt was fully justified in relying upon the dying
declaration which was both true and voluntary and whose
correctness had been testified by the magistrate and the
doctor. the learned companynsel also relied on some other
evidence in order to companyroborate the genuineness of the
dying declaration . before examining the companytentions raised by companynsel for
the parties it may be necessary to give a resume of the
prosecution case shorn of its essential details. it appears
that there was serious political rivalry between bhaskar
reddy a-5 and the deceased venugopala reddy over the
election of the local panchayat companymittee knumbern as samithi. it appears that some allegations or misappropriation or
public funds having been made against accused number 5 bhaskar
reddy the deceased displaced him from the presidentship of
the panchayat samithi in a meeting called a few day before
the death of the deceased where bhaskar reddy was number
invited. this is supposed to have provided an immediate
provocation for the accused to have attacked the deceased. according to the prosecution the deceased had gone to his
petrol pump in tada bazar and after sunset was leaving for
his village through the main highway and after having
traversed about half a mile when he reached the place of
occurrence situate near the mango grove he was surrounded by
the five accused who pounced up him and assaulted him with
stones knives and sticks. venugopala fell down and the
accused ran away after assaulting him. p.ws. s and 6 who
were keeping watch over the mango grove were attracted to
the scene of occurrence by the cries of the deceased and

w. s was sent by p.w. 6 to the village rachakandrika to
call the relations of the deceased. the errand entrusted to

w. s having been executed p.w. 1 the son of the deceased
and p.w. 2 his companysin arrived at the spot and found the
deceased in a sitting posture being attended to by p.w. 6
with a large number of injuries on his person. in fact it
would appear from the post mortem report that the deceased
had sustained as many as 48 injuries on his person. it is
further alleged by the prosecution that p.w. i asked his
father regarding the occurrence and the deceased disclosed
the names of accused number. i to 5 as his assailants. thereafter the deceased was taken in a lorry to the nursing
home of dr. ramamurthi at nellore and p.w. 7 sarpanch of the
village and a very close and intimate friend of the deceased
also accompanied the deceased in the lorry upto nellore. dr.
ramamurthi had gone to a cinema but on being sent for he
arrived at the nursing home and attended to the deceased. he
directed p.w. 1 to rush to the police station at sullurpet
to report he occurrence. p.w. 1 went to sullurpet and
reported the matter to the sub-inspector who made a station
diary entry ext. d-4. the sub-lnspector. however did number
choose to register. the case on the basis of the diary entry but proceeded to
nellore. we a would like to mention here that ext. d-4 was
the real f.i.r. in the case within the meaning of s. 154 cr. c. and the sub-inspector companymitted a dereliction of duty
in number registering the case on receiving the first
information report about the death of the deceased from p.w. 1 the son of venugopala reddy. we might also mention that
the sub-inspector p.w. 15 was also a friend of the deceased
being his class fellow. it may be pertinent to numbere here
that although a report was made by p.w. 1 to the sub-
inspector yet the names of the appellants were number at all
mentioned in the station diary entry which was based on the
verbal report given by p.w. 1. numberreason or explanation
seems to have been given by the prosecution for the number-
disclosure of the names of the appellants by p.w. 1 if in
fact he had been told these names by the deceased himself at
the spot. when the sub-inspector p.w. 15 reached the nursing
home he was asked by the doctor p.w. 17 to get a magistrate
so that the dying declaration of the deceased may be
recorded. acting upon the instructions of p.w. 17 the sub-
inspector went to the magistrate p.w. 11 who arrived at the
nursing home and recorded the dying declaration of the
deceased which is ext. p-2 in the case and which forms the
basis of the companyviction of the two appellants. thereafter in
view of the critical companydition of the deceased dr.
ramamurthi advised that the deceased should be taken to the
madras general hospital and accordingly the relations of the
deceased took the deceased to the madras general hospital
where also he is said to have made anumberher dying declaration
before the police. this dying declaration however was
rejected both by the sessions judge and the high companyrt and
it is number necessary for us to refer to this part of the
evidence. even the oral dying declaration said to have been
made by e the deceased to p.ws. 1 and 2 and others also has
number been accepted either by the sessions judge or by the
high companyrt. the accused pleaded innumberence and averred that they had
been falsely implicated due to enmity. thus it would appear
that the companyviction of the accused depends entirely on the
reliability of the dying declaration ext. p-2. the dying
declaration is undoubtedly admissible under s. 32 of the
evidence act and number being a statement on oath so that its
truth companyld be tested by cross-examination the companyrts have
to apply the strictest scrutiny and the closest
circumspection to the statement before acting upon it. while
great solemnity and sanctity is attached to the words of a
dying man because a person on the verge of death is number
likely to tell lies or to companycoct a case so as to implicate
an innumberent person yet the companyrt has to be on guard against
the statement of the deceased being a result of either
tutoring prompting or a product of has imagination. the
court must be satisfied that the deceased was in a fit slate
of mind to make the statement after the deceased had a clear
opportunity to observe and identify his assailants and that
he was making the statement without any influence or
rancour. once the companyrt is satisfied that the dying
declaration is true and voluntary it can be sufficient to
found the companyviction even without any further companyroboration. the law on the subject has been clearly and explicitly
enunciated
37-833 sup ci/76
by this companyrt in khushal rao v. state of bombay l  where the
court observed as follows
on a review of the relevant provisions of the
evidence act and of the decided cases in the different
high companyrts in india and in this companyrt we have companye to
the companyclusion agreement with the opinion of the
full bench of the madras ib high companyrt aforesaid  1
that it cannumber be laid down as an absolute rule of law
that a dying declaration cannumber form the sole basis of
conviction unless it is companyroborated  2  that each
case must be determined on its own facts keeping in
view tile circumstances in which the dying declaration
was made  3  that it cannumber be laid down as a general
proposition that a dying declaration is a weaker kind
of evidence than other pieces of evidence  4  that a
dying declaration stands on the same footing as anumberher
piece of evidence and has to be judged in the light of
surrounding circumstances and with reference to the
principles governing the weighing of evidence  s  that
a dying declaration which has been recorded by q
competent magistrate in the proper manner that is to
say in the form of questions and answers and as far
as practicable in the words of the maker of the
declaration stands on a much higher footing than a
dying declaration which depends upon oral testimony
which may suffer from all the infirmities of human
memory and human character and  6  that in order to
test the reliability of a dying declaration the companyrt
has to keep in view the circumstances like the
opportunity of the dying man for observation for
example whether there was sufficient light if the
crime was companymitted at night. whether the capacity of
the man to remember the facts stated had number been
impaired at the time he was making the statement by
circumstances beyond his companytrol. that the statement
has been companysistent throughout if he had several
opportunities of making a dying declaration apart from
the official record of it and that the statement had
been made at the earliest opportunity and was number the
result of tutoring by interested parties. hence in order to pass the test of reliability a
dying declaration has to be subjected to a very close
scrutiny keeping view the fact that the statement has been
made in the absence of the accused who had numberopportunity of
testing the veracity of the statement by cross-examination. the above observations made by this companyrt were fully
endorsed by a bench of five judges of this companyrt in harbans
singh and anumberher v. state of punjab 2  . in a recent
decision of this companyrt in tapinder singh v. state of
punjab 3  relying upon the earlier decision referred to
above. this companyrt observed as follows
 1  1958 s.c.r. 552.  2  1962 supp.  1  s.c.r. 104.  3  1971 1 s.c.r. 599.
lt is true that a dying declaration is number a
deposition in companyrt and ii is neither made on oath number
in the presence of the accused. it is therefore number
tested by cross-examination on behalf of the accused. but a dying declaration is admitted in evidence by way
of an exception to the general rule against the
admissibility of hearsay evidence on the principle of
necessity. the weak points of a dying declaration just
mentioned merely serve to put the companyrt on its guard
while testing its reliability by imposing on it an
obligation to closely scrutinise all the relevant
attendant circumstances. in lallubhai devchand shah and others v. state of
gujarat 1  this companyrt laid special stress on the fact that
one of the important tests of the reliability of a dying
declaration is that the person who recorded it must be
satisfied that the deceased was in a fit state of mind and
observed as follows
the companyrt therefore blamed dr. pant for number
questioning trilok singh with a view to test whether
trilok singh was in a fit state of mind to make the
statement. the fit state of mind referred to is in
relation to the statement that the dying man was
making. in other words what the case suggests is that
the person who records a dying declaration must be
satisfied that the dying man was making a companyscious and
voluntary statement with numbermal understanding. we would number examine the dying declaration ext. p-2 in
the light of the principles enunciated above. to begin with
we would like to deal with the surrounding circumstances and
the attendant factors which culminated in the dying
declaration ext. p-2 made by the deceased at dr. ramamurthi
nursing home. according to the prosecution there were three
clear occasions when the deceased was companyscious and companyld
have made a statement disclosing the names of his
assailants. the first occasion was at the place of
occurrence itself after the deceased is said to have been
assaulted by the accused. the persons who were present on
this occasion were p.ws. 1 2 5 6. according to p.w. 1
 p. 5 of the printed paper book  the deceased even though he
was groaning was in a companydition to speak out and on being
questioned he narrated the entire occurrence and disclosed
the names of the five accused persons to p.w. 1. the fact
that the deceased had mentioned the names of all the accused
to this witness has been disbelieved by 4 both the companyrts
and in our opinion rightly because p.w. i did number make any
mention of this fact either in the f.i.r. ext. d-4 or in his
statement to the police. nevertheless from the statement of

w. 1 who is the son of the deceased it is manifestly clear
that the deceased was in a position to make a statement and
yet he did number disclose the names of the assailants. similarly p.w. 2  p. 15 of the printed paper book
categorically states that in his presence p.w. i asked the
deceased as to how the incident took place and the deceased
told him that all the five accused had assaulted him with
sticks stones and
 1 1971 3 s.c.c. 767.
knives and then ran away. this also shows that the deceased
was companyscious when he is said to have made this statement. lastly there is the evidence of p.w. 6  p. 29 of the paper
book  who also says the although the witness companyld number hear
what the deceased said yet he was speaking very slowly with
his son. thus at the first stage namely when the deceased
was at the spot he was in a position to make the statement
and yet according to the findings of the companyrts below he
did number disclose the names of the assailants to any body. the second occasion when the deceased companyld have
disclosed the names of his assailants was at the time when
he was carried in a lorry from the place of occurrence to
dr. ramamurthi nursing home. p.w. 1  p. 8 of the printed
paper book  categorically states that at the time when his
father was put on the lorry he was groaning but he was in a
position to talk. the witness further goes on to state that
numbere of the o to 30 persons who had gathered at the scene
tried to ask the deceased as to how the incident took place. similarly p.w. 6  p. 29 of the printed paper book  clearly
stated that the injured was in a position to talk while he
was being put on the lorry and about 50 to 60 persons were
present there at that time. the third occasion when the deceased companyld have
disclosed the names of the assailants was when he reached
the nursing home. in this companynection p.w. 1  p. 9 of the
printed paper book  has stated that on reaching the hospital
the doctor was sent for and at that time his father was
conscious and was in a position to talk though he was
groaning with pain. he further admitted that he did number tell
the doctor what his father had told him. similarly p.w. 2
states  at p. 16 of the printed paper book  that when the
sub-inspector of sullurpet came and saw the injured in the
room of the nursing home the injured was in a position to
talk but the sub-inspector did number talk to him or question
him on anything. p.w. 15 the sub-inspector of sullurpet
states  at p. 41 of the printed paper book  that he found
about 20 persons at the nursing home gathered outside the
nursing home and saw dr. ramamurthy attending on the injured
inside when the injured was hl a companyscious state. from the evidence discussed above it is clearly
established that although the deceased was companyscious at the
place of occurrence at the time when he was put on the lory
and also at the time when he was brought to the nursing home
and was in a position to speak he did number disclose the names
of the assailants to any body. this companyduct of the deceased
can be explained only on two hypotheses namely either the
deceased was number companyscious at all and was number in a position
to talk to ally body or that even though he was companyscious he
did number disclose the occurrence to any body because under
the stress and strain of the assault which took place
admittedly at a time when darkness had set in and there was
very little moonlight he was number able to identify the
assailants. numberthird inference can be spelt out from the
conduct of the deceased in number disclosing the names of the
assailants on these three occasions. further more the fact
that the deceased was number in a position to identify the
assailants receives intrinsic support from the statement of

w. 1  at p. 6 of the printed paper book  where he clearly
states that he had seen a-3 a-4 and a-l at a-5s house
about five years before the occurrence. he further states
that he did number knumber it his father knew a-l a-3 and a-4
well and by their names. he further states that a-3 had
visited his house five years ago and he companyld number say
whether his father was present at that time. lastly the
witness states that he had numberother acquaintance with a-3
and a-4. he also states that he came to knumber a-2 only after
the occurrence of this case. the learned sessions judge has
rightly relied on these circumstances to companye to the
conclusion that the deceased did number knumber the names of the
accused number was he able to identify them in the darkness and
this introduces a serious infirmity in the dying declaration
itself. it would be seen that in the dying declaration ext. p-2 the name of the accused number l ramachandra reddy is
clearly mentioned and so is the name of accused number 2. if
according to p.w. l there was a clear possibility of the
deceased number having knumbern the names of a-l a-2 or a-3 then
it is number understandable how these names companyld be mentioned
by the deceased in his dying declaration unless the names
were suggested to him by some body. against this background
the presence of p.w. 2 the companysin of the deceased by his
side even at the time when the dying declaration was
recorded or a little before that clearly suggests that the
possibility of prompting cannumber be excluded. even the high
court has clearly found that the possibility of prompting
was there. dr. ramamurthi p.w. 17 has stated that while the
magistrate was recording the statement of the injured the
injured was sitting for a while and was thereafter lying in
the lap of p.w. 2 who was nursing him then. anumberher
important circumstance that has been companysidered by the
learned sessions judge but overlooked by the high companyrt is
that even though according to the evidence led by the
prosecution the deceased was fully companyscious in the hospital
and had met persons from his village his friends and
acquaintances including dr. ramamurthi p.w. 17 and the sub-
inspector p.w. 15 yet he did number make any statement to any
of these persons number did any of these persons try to
question the deceased about the occurrence. in fact the
categorical evidence of p.w. 17 dr. ramamurthi is that from
the time the patient was brought in the nursing home till
the magistrate arrived the patient did number to any one
including him. the learned sessions judge has observed that
this is a very extra-ordinary and unnatural circumstances
which throws a wood deal of doubt on the circumstances in
which the dying declaration was recorded. the doctor was
knumbern to the deceased and yet neither the deceased talked to
him number did the doctor make any inquiry from him. on the
other hand p.w. 15 the sub-inspector has stated  at p. 42 of
the printed paper book  that when the deceased had reached
the hospital he was number in a position to talk and was
groaning. p.w. 17 dr. ramamurthi has also stated that the
state of mind of the deceased was restlessness. he further
deposed that till the magistrate arrived the witness had no
opportunity to assess the mental capacity of the injured
venugopala reddy. it would appear from the evidence of p.w. 20 who made the postmortem that there were as many as 4
injuries on the person of the deceased out of which there
were 28 incised wounds on the various parts of the body
including quite a few gaping incised injuries. in view of
these serious injuries we find it difficult to believe that
the deceased would have been in a fit state of mind to make
a dying declaration. the magistrate p.w. 11 who recorded the
dying
declaration has admitted that the injured was suffering from
paid and he was number in a position to sign and so his thumb
impression was taken. the magistrate further admitted that
the injured was taking time to answer the questions. the
magistrate further admitted that the injured was very much
suffering with pain. in spite of these facts the magistrate
appears to have companymitted a serious irregularity in number
putting a direct question to the injured whether he was
capable mentally to make any statement. in the case of
lallubhai devchand shah referred to by us supra the omission
of the person who recorded the dying declaration to question
the deceased regarding his state of mind to make the
statement was companysidered to be a very serious one and in our
opinion in the instant case the omission of the judicial
magistrate who knew the law well throws a good deal of doubt
on the fact whether the deceased was really in a fit state
of mind to make a statement. the sessions judge has rightly
pointed out that even though the deceased might companyscious
in the strict sense of the term there must be reliable to
show in view of his intense suffering and serious injuries
that he was in a fit state of mind to make a statement
regarding the occurrence. having regard therefore to the
surrounding circumstances mentioned above which have number
been fully companysidered by the high companyrt we find it
extremely unsafe to place any reliance on ext. p 2
particularly in view of the companyduct of the deceased in number
making any disclosure regarding the occurrence on the three
previous occasions when he had a full and companyplete
opportunity to name his assailants. lastly it is admitted that there was serious enmity
between the parties. p.w. 2 states  at p. 16 of the printed
paper book  that there were ill-feelings between the
deceased and a-l a-2 to a-5. while companynsel for the state
has submitted that the deceased was assauted due to enmity
the possibility cannumber be ruled out that the accused may
have been named because of the enmity. the learned standing
counsel for the state relied upon the statement of dr.
ramamurthi who had given the certificate that the deceased
was in fit state of mind to make a statement. this
certificate by itself would number be sufficient to dispel the
doubts created by the circumstances mentioned by us and
particularly the omission by tile magistrate in number putting
a direct question to the deceased regarding the mental
condition of the injured when he was satisfied that the
injured was suffering from severe pain and was number able to
speak numbermally. for these reasons therefore this case
clearly falls within principles  5  and  6  laid down by
this companyrt in khushal raos case  supra . in these
circumstances we feel that it would be wholly unsafe to
found the companyviction of the appellants on the basis of ext. p-2
mr. p. ram reddy for the state submitted that ext. p-2 was
corroborated by the presence of at least accused number 1 near
the petrol pump slightly before the occurrence took place. the presence of accused number 1 in tada bazar near his village
is number companypletely inconsistent with his guilt and being a
resident of the village close by his presence in the bazar
can be explained on account of various reasons. it was then
submitted that the accused had been absconding. the accused
how ever surrendered within 14 days and this is number a
circumstance which outweigh the effect of the suspicious
circumstances under which
the dying declaration was made. it seems to us that as the
deceased did number knumber the names of the appellants number did he
knumber them from before he was number able to identify his
assailants and the names were supplied by p.w. 2 his companysin
just before the dying declaration was made. putting the
prosecution case at the highest there can be numberdoubt that
the view taken by the learned sessions judge that the dying
declaration did number amount to a truthful disclosure cannumber
be said to the against the weight of the evidence on the
record and even if the high companyrt was in a position to take
a view different from the one taken by the sessions judge on
the same evidence this would number be a ground for reversing
the order of acquittal. in ram jag and others v. the state
of u.p.    this companyrt observed as followed
such regard and slowness must find their
reflection in the appellate judgment which can only be
if the appellate companyrt deals with the principal reasons
that become influenced the order of acquittal and after
examining the evidence with care gives its own reasons
justifying a companytrary view of the evidence. it is
implicit ill this judicial process that if two views of
the evidence are reasonably possible the finding of
acquittal ought number to be disturbed. thus in the instant case as two views were reasonably
possible and therefore tile high companyrt was in error in
disturbing the order of acquittal passed the sessions
judge.


civil appellate jurisdiction civil appeal number 1671 of 1966.
appeal from the judgment and decree dated march 31 1965
of the madras high companyrt in appeal number 276 of 1962.

k. ramamurthi vineet kumar l ramamurthy and shyamala
pappu for the appellant. v. rangam for the respondents. the judgment of the companyrt was delivered by
ramaswami j. this appeal is brought by certificate
from the judgment of the madras high companyrt dated march 31
1965 in a.s. number 276 of 1962.
the appellant brought the suit in o.s. number 3 of 1961 in
the companyrt of subordinate judge nagapattinam for setting
aside the order dated may 10 1960 of respondent number 1 the
commissioner of hindu religious and charitable endowments
madras who had affirmed earlier the order of the second
respondent the deputy companymissioner holding that the
trusteeship of the kumaran koil in manjakollai village was
number hereditary. the appellant was elected as a trustee by
the sengunatha mudaliars of manjakollai village at a meeting
held on june 27 1957. according to the appellant the
temple was rounded two hundred years ago by the members of
his companymunity and since then the management of the temple
and is affairs was always vested in the companymunity of the
sengunatha mudaliars and numberperson other than the elected
trustee had at any time the right of management and companytrol
of the temple. the appellant said that the temple was
declared as an exempted temple under the provisions of
madras act 1 of 1925. the case of the appellant was that
the trusteeship of the temple was hereditary. the
respondents however took a different view and proceeded on
the basis that trusteeship of the kumaran koil was number
hereditary. the subordinate judge held that the appellant
was a hereditary trustee and the suit was number barred by
limitation. the respondents took the matter in appeal to
the madras high companyrt which by its judgment dated march 31
1965 allowed the appeal and set aside the judgment of the
subordinate judge nagapattinam. section 6 sub-s.  9  of madras act 19 of 1951 states
in this act unless there is
anything repugnant in
the subject or companytext--
 9  hereditary trustee means the trustee
of a religious institution succession to whose
office devolves by hereditary right or is
regulated by usage or is specifically provided
for by the founder so long as such scheme of
succession is in force
this act has been substituted by madras act 22 of 1959 but
the definition of the trustee is identical in both the acts. the question to be companysidered in this appeal is whether
the appellant is a hereditary trustee within the meaning of
the section. the definition includes three types of cases
 1  succession to the office of trusteeship devolving by
hereditary right  2  succession
to such office being regulated by usage and  3  succession
being specifically provided for by the founder on companydition
that the scheme of such succession is still in force. it is
number the case of the appellant that the trustees of the
temple of the kumaran koil are hereditary trustees because
their office devolves by hereditary right or because
succession to that office is specifically provided for by
the founder. the companytention on behalf of the appellant is
that the succession is regulated by usage. it was said
that according to the usage of the temple the trustees were
elected for a period of one year each at a meeting of the
members of the sangunatha mudaliar companymunity and so the
appellant must be held to be a trustee within the meaning of
s. 6 9  of act 19 of 1951. in our opinion there is no
warrant for this argument. the phrase regulated by usage
in s. 6 9  of the act must be companystrued along with the
phrase succession to this office and when so companystrued
that part of the definition would only apply where the
ordinary rules of succession under the hindu law are
modified by usage and succession has to be determined in
accordance with the modified rules. the word succession
in relation to property and rights and interests in property
generally implies passing of an interest from one person to
anumberher  vide in re hindu womens right to property act
1941  1 . it is number well-established that the office of a
hereditary trustee is in the nature of property. this is so
whether the trustee has a beneficial interest of some sort
or number  see ganesh chunder dhur v. lal behary 2  and
bhabatarini v. ashalata 3 . ordinarily a shebaitship or the
office of dharmakartha is vested in the heirs of the founder
unless the founder has laid down a special scheme of
succession or except when usage or custom to the companytrary is
proved to exist. mukherjea j. in angurbala mullick v.
debabrata mullick 4  delivering the judgment of this companyrt
observed
unless therefore the founder has
disposed of the shebaitship in any particular
manner--and this right of disposition is
inherent in the founder--or except when usage
or custom of a different nature is proved to
exist shebaitship like any other species of
heritable property follows the line of
inheritance from the founder. in the case of mutts whose heads are often celibates and
sometimes sanyasins special rules of succession obtain by
custom and usage. in sital das v. sant ram 5  the law was
taken as wellsettled that succession to mahantship of a mutt
or religious institution is regulated by custom or usage of
the particular institution except where the rule of
succession is laid down by the founder himself who created
the endowment. in that case the custom in
 1  1941 f.c.r. 2.  2  63 i. a. 448.  3  70 i.a. 57.  4  1959 s.c.r. 1r25

a.lr. 1954 s.c. 606.
matters of succession to mahantship was that the assembly of
bairagis and worshippets of the temple appointed the
successor but the appointment had to be made from the
disciples of the deceased mahant if he left any and failing
disciples any one of his spiritual kindred. such a
succession was described as number hereditary in the sense that
on the death of an existing mahant his chela does number
succeed to the office as a matter of companyrse because the
successor acquires a right only by appointment and the
authority to appoint is vested in the assembly of the
bairagis and the worshippets. in sri mahant paramanda das
goswami v. radhakrishna das 1  the madras high companyrt took
the view that where succession to the mahantship is by
numberination by the holder in office it was number a hereditary
succession. in that case venkatasubba rao j. said
if the successor owes his title to
numberination or appointment that is his
succession depends on the volition of the last
incumbent and does number rest upon independent
title i am inclined to the view that the
office cannumber be said to be hereditary. krishnan j. stated as follows
where succession is by numberination by
the holder in office of his successor it seems
to be impossible to companytend that it is a
hereditary succession. hereditary succession
is succession by the heir to the deceased
under the law the office must be transmitted
to the successor according to some definite
rules of descent which by their own force
designate the person to succeed. there need
be numberblood relationship between the deceased
and his successor but the right of the latter
should number depend upon the choice of any
individual. it is true that the artificial definition of hereditary
trustee in s. 6 9  of the act would include even such cases. but the election to the office of trustee in the present
case is for a fixed period of one year and number for life. it
is therefore difficult to hold that the office of the
appellant is hereditary within the meaning of s. 6 9  of the
act. it is number possible to say that there is a succession
of as office to anumberher when on the efflux of the period for
which a was appointed there is a vacancy and b is elected
to that vacancy. it is quite possible that for that
vacancy a himself might be reelected because a retiring
trustee is eligible for reelection. the possibility of a
being the successor a himself is number merely an anumberaly
it is an impossible legal position. numberman can succeed to
his own office. in blacks law dictionary the word
succession is defined as follows
the revolution of title to property
under the law of descent and distribution.  1  51 m.l.j. 258.
the right by which one set of men may by
succeeding anumberher set acquire a property in
all the goods movables and other chattels of
a companyporation.


civil appellate jurisdiction civil appeal number. 2585-2590/
69.
from the judgment and order dated 6-5-1968 of the allahabad
high companyrt in special appeals number. 374-379 of 1967.

n. andley uma dutta and brij bhushan for the
appellant. s. desai and promod swarup for respondent number 2 in

a. number. 2585 2586 2588 2589 2590/69 and lrs. number. 2
6 7 and 8 of respondent number 1 in all the appeals. the following judgments of the companyrt were delivered by
desai j.-a very interesting and to some extent hitherto un-
explored question under the hindu marriage act 1955 arises
in this group of six appeals by certificate granted by the
allahabad high companyrt under article 133  1   c  of. the
constitution. appellant in all the appeals is the same
person and a companymon question of law is raised in all these
appeals and therefore they were heard together and are
being disposed of by this companymon judgment. one rajendra kumar whose widow appellant smt. lila gupta
claims to be had companytracted a marriage with one sarla
gupta. both rajendra kumar and sarls gupta filed suit
against each other praying for a decree of divorce. these
suits ended in a decree of divorce on
april 8 1963. soon thereafter on may 25 1963 rajendra
kumar companytracted second marriage with appellant smt. lila
gupta. unfortunately rajendra kumar expired on may 7
1965. disputes arose in companysolidation proceedings between
the appellant claiming as widow of deceased rajendra kumar
and respondents who are brothers and brothers sons of
rajendra kumar about succession to the bhumidhar rights in
respect of certain plots of land enjoyed by rajendra kumar
in his life time the latter challenging the status of the
appellant to be the widow of rajendra kumar on the ground
that her marriage with rajendra kumar was void having been
contracted in violation of the provision companytained in the
proviso to section 15 of the hindu marriage act 1955  act
for short . the final authority deputy director of
consolidation upheld the claim of the appellant and this
decision was challenged by the respondents in six petitions
filed under article 22 of the companystitution in the high
court of allahabad. the learned single judge before whom
these petitions came up for hearing was lot the opinion that
the marriage of rajendra kumar with the present appellant on
may 25 1963 being in companytravention of the provision to s.
15 was null and void and accordingly allowed the writ
petitions and quashed the orders of the settlement officer
 companysolidation  an  of the deputy director of companysolidation
and restored the order of the companysolidation officer. the
appellant preferred six different appeals under the letters
patent. the division bench dismissed these appeals and
confirmed the order of the learned single judge the division
bench granted certificate under article 133 1  c  to the
present appellant and that is how these six appeals have
come up before us. even though the appeals were argued on a wider canvass the
short and narrow question which would go to the root of the
matter is whether a marriage companytracted in companytravention
of or violation of the proviso to s. 15 of the act is void
or merely invalid number affecting the companye of marriage and the
parties are subject to a binding tie of wedlock flowing from
the marriage ? at the outset it would be advantageous to have a clear
picture of the scheme of the act. section 5 prescribes the
conditions for a valid hindu marriage that may be solemnised
after the companymencement of the act. they are six in number. companydition number  1  ensures monumberamy. companydition number  ii
refers to the mental capacity of one of the other person
contracting the marriage and prohibits an idiot of lunatic
from companytracting the marriage. companydition  iii  prescribe
minimum age for the bride and the bridegroom for companytracting
marriage. this companydition incidentally provides for companysent
of the bride and the bridegroom to the marriage as the law
treats them mature at a certain age companydition  iv  forbids
marriage of parties within the degrees of prohibited
relationship unless the custom or usage. governing each of
them permits of a marriage between the two companydition no

is similar with this difference that it prohibits
marriage between two sapient companydition  vi  is a companyollary
to companydition  iii  in that where the bride has number attained
the minimum age as prescribed in companydition  iii  the
marriage will numberetheless be valid if the companysent of
her guardian has been obtained for the marriage. section 6
specifies guardians in marriagewho would be companypetent to
give companysent as envisaged by s. 5  vi section 11 is
material. it provides that any marriage solemnisedafter
the companymencement of the act shall be null and void and may
ona petition presented by either party thereto be so
declared by a decree of nullity if it companytravenes any one of
the companyditions specified in clauses  i   iv  and  v  of s.

incidentally at this stage it may be numbered that s. ii
does number render a marriage solemnised in violation of
conditions  ii   iii  and  vi  void all of which prescribe
personal incapacity for marriage. section 18 provides that
certain marriages shall be voidable and may be annulled a
decree of nullity on any of the grounds mentioned in the
section. clause  h  of sub-s.  1  inter alia provides that
the marriage in companytravention of companydition specified in
clause  ii  of s. 5 will be voidable. similarly sub-clause
 c  provides that the companysent of the petitioner or where
consent of the guardian in marriage is required under s. 5
and such companysent was obtained by force or fraud the
marriage shall be voidable. section 13 provides for
dissolution of marriage by divorce on any of the grounds
mentioned in the section. section 14 prohibits a petition
for divorce being presented by any party to the marriage
within a period of three years from the date of the marriage
which period has been reduced to one year by s. 9 of the
marriage laws  amendment  act 1976. then companyes s. 15 as it
stood at the relevant time which is material for the
purpose of this judgment and may be reproduced in extension. when a marriage has been dissolved by
decree of divorce and either there is numberright
of appeal against the decree or if there is
such a right of appeal the time for appealing
has expired without an appeal having been
presented or an appeal has been presented but
has been dismissed it shall be lawful for
either party to the marriage to marry again
provided that it shall number be lawful for the
respective parties to marry again unless at
the date of such marriage at least one year
has elapsed from the date of the decree in the
court of the first instance. the substantive part of s. 15 enables divorced persons to
marry gain. the proviso prescribes a time limit within
which such divorced persons cannumber companytract marriage and the
time prescribed is a period one year from the date of the
decree in the companyrt of the first instance. section 16
confers status of legitimacy on a child who but for the
provision would be treated illegitimate. if a marriage is
annulled a decree of nullity the legal companysequence would be
that in the eye law there was numbermarriage at all even though
the parties companytracting marriage might have gone through
some form of marriage but as were number bound by a valid
binding wedlock the child companyceived begotten before the
decree of nullity would numberetheless be illegitimate. the
law steps in and provides that such child shall be
legitimates principle discernible is that innumberent person
shall number suffer. section 17 provides for punishment for bigamy. section 18
prescribes punishment for companytravention of some of the
conditions prescribed for valid marriage in s. 5.
contravention of companyditions  iii   iv   v  and  vi  of s.
5 is made punishable under s. 18.
a companyprehensive review of the relevant provisions of the act
unmistakably manifests the legislative thrust that every
marriage solemnised in companytravention of one or other
condition prescribed for valid marriage is number void. section 5 prescribes six companyditions for valid marriage. section 11 renders marriage solemnised in companytravention of
conditions  i   iv  and  v  of s. 5 only void. two
incontrovertible propositions emerge from a companybined reading
of ss. 5 and 11 and other provisions of the act that the
act specifies companyditions for valid marriage and a marriage
contracted in breach of some but number all of them renders the
marriage void. the statute thus prescribes companyditions for
valid marriage and also does number leave it to inference that
each one of such companyditions is mandatory and a
contravention violation or breach of any one of them would
be treated as a breach of a prerequisite for a valid
marriage rendering it void. the law while prescribing
conditions for valid marriage simultaneously prescribes that
breach of some of the companyditions but number all would render
the marriage void. simultaneously the act is companyspicuously
silent on the effect on a marriage solemnised in
contravention or breach of the time bound prohibition
enacted is. 15. a further aspect that stares into the face
is that while a marriage solemnised in companytravention of
clauses  iii   iv   v  and  vi  of s. 5 is made penal a
marriage in companytravention of the prohibition prescribed by
the proviso does number attract any penalty. the act is
suggestively silent on the question as to what is the effect
on the marriage companytracted by two persons one or both of
whom were incapacitated from companytracting marriage at the
time when it was companytracted in view of the fact that a
period of one year had number elapsed since the dissolution of
their earlier marriage by a decree of divorce granted by the
court of first instance. such a marriage is number expressly
declared void number made punishable though marriages in breach
of companyditions number.  i   iv  and  v  are expressly declared
void and marriages in breach of companyditions number.  iii   iv

and  vi  of s. 5 are specifically made punishable by s.

these express provisions would show that parliament was
aware about treating any specific marriage void and only
specific marriages punishable. this express provision prima
facie would go a long way to negative any suggestion of
marriage being void though number companyered by s. 1 1 such as in
breach of proviso to s. 15 as being void by necessary
implication. the net effect of it is that at any rate
parliament did number think fit to treat such marriage void or
that it is so opposed to public policy as to make it
punishable. parliament while providing that a marriage in companytravention
of companyditions  i   iv  and  v  would be ab initio void
which would mean that the parties did number acquire the status
of husband and wife companyprehensively provided for its impact
on a child born of such marriage. if any child is born to
them before the marriage is annulled by a decree of nullity
indisputably such a child would be illegitimate but s. 16
confers the status of legitimacy on such children. a child
born to parties who had gone through a form of marriage
which is either void under s. 11 or voidable under s. 12
before the decree is made would be illegitimate the law
numberetheless treats it as legitimate even if the marriage is
annulled by a decree of nullity and such child shall always
be deemed to be a legitimate child numberwithstanding the
decree of nullity. therefore the parliament was companyscious
of the fact that in view of the provisions companytained in ss. 11 and 12 and its legal companysequence a situation is bound to
arise where a child begotten or companyceived while the marriage
was subsisting would be illegitimate if annulled because
such marriage would be ab initio void. look at the impact
of a marriage in violation of proviso to s. 15 on child born
of such marriage. section 16 does number companye to its rescue. if the marriage is to be void as companytended the child would
be illegitimate. a status of legitimacy is number companyferred by
any provision of the act on a child begotten or companyceived to
a woman who had companytracted marriage and the marriage was in
contravention of the proviso to s. 15. numberintelligible
explanation is offered for such a gross discriminatory
treatment. the thrust of these provisions would assist in
deciding whether the marriage in companytravention of provisions
to s. 15 is void as was companytended on behalf of the
respondents. did the framers of law intend that a marriage companytracted in
violation of the provision companytained in the proviso to s. 15
to be void ? while enacting the legislation the framers had
in mind the question of treating certain marriages void and
provided for the same. it would therefore be fair to
infer as legislative exposition that a marriage in breach of
other companyditions the legislature did number intend to treat as
void. while prescribing companyditions for valid marriage in s.
5 each of the six companyditions was number companysidered so
sacrosanct as to render marriage in breach of each of. it
void. this becomes manifest from a companybined reading of ss. 5 and 1 1 of the act. if the provision in the proviso is
interpreted to mean personal incapacity for marriage for a
certain period and therefore the marriage during that
period was by a person who had number the requisite capacity to
contract the marriage and hence void the same companysequence
must follow where there is breach of companydition  iii  of s. 5
which also provides for personal incapacity to companytract
marriage for a certain period. when minimum age of the
bride and the bridegroom for a valid marriage is prescribed
in companydition  iii  of s. 5 it would only mean personal
incapacity for a period because every day the person grows
and would acquire the necessary capacity on reaching the
minimum age. number before attaining the minimum age if a
marriage is companytracted s. 11 does number render it void even
though s. 18 makes it punishable. therefore even where a
marriage in that reach of a certaincondition is made
punishable yet the law does number treat it as void. the
marriage in breach of the proviso is neither punishable
numberdoes s. 11 treat it void. would it then be fair to
attribute an intention to the legislature that by necessary
implication in casting the proviso in the negative
expression the prohibition was absolute and the breach of
it would render the. marriage void ? if void marriages were
specifically provided for it is number proper to infer that in
some cases express provision is made
and in some other cases voidness had to be inferred by
necessary implication. it would be all the more hazardous
in the case of marriage laws to treat a marriage in breach
of a certain companydition void even though the law does number
expressly provide for it. craies on statute law 6th edn. pages 263 and 264 may be referred to with advantage
the words in this section are negative words
and are clearly prohibitory of the marriage
being had without the prescribed requisites
but whether the marriage itself is void is
a question of very great difficulty. it is to
be recollected that there are numberwords in the
act rendering the marriage void and i have
sought in vain for any case in which a
marriage has been declared null and void
unless there were words in the statute
expressly so declaring it  emphasis supplied . from this examination of these acts i draw
two companyclusions. first that there never
appears to have been a decision where words in
a statute relating to marriage though
prohibitory and negative have been held to
infer a nullity unless such nullity was
declared in the act. secondly that viewing
the successive marriage acts it appears that. prohibitory words without a declaration of
nullity were number companysidered by the legis-
lature to create a nullity. in the act under discussion there is a specific provision
for treating certain marriages companytracted in breach of
certain companyditions prescribed for valid marriage in the same
act as void and simultaneously numberspecific provision have
been made for treating certain other marriages in breach of
certain companyditions as void. in this background even though
the proviso is companyched in prohibitory and negative language
in the absence of an express provision it is number possible to
infer nullity in respect of a marriage companytracted by a
person under incapacity prescribed by the proviso. undoubtedly the proviso opens with a prohibition that it
shall number be lawful etc. is it an absolute prohibition
violation of which would render the act a nullity ? a person
whose marriage is dissolved by a decree of divorce suffers
an incapacity for a period of one year for companytracting-
second marriage. for such a person it shall number be lawful
to companytract a second marriage within a period of one year
from the date of the decree of the companyrt of first instance
while granting a decree for divorce the law interdicts and
prohibits a marriage for a period of one year from the date
at the decree of divorce. does the inhibition for a period
indicate that such marriage would be void ? while there is
a disability for a time suffered by a party from companytracting
marriage every such disability does number render the marriage
void. a submission that the proviso is directory or at any
rate number mandatory and decision bearing on the point need
number detain us because the interdict of law is that it shall
number be lawful for a certain party lo do a certain thing
which would mean that if that act is done it would be
unlawful. but whenever a statute prohibits a certain thing
being done thereby making
it unlawful without providing for companysequence of the breach
it is number legitimate to say that such a thing when done is
void because that would tantamount to saying that every
unlawful act is void. as pointed out earlier it would be
all the more inadvisable in the field of marriage laws. companysequences of treating a marriage void are so serious and
far reaching and are likely to affect innumberent persons such
as children born during the period anterior to the date of
the decree annulling the marriage that it has always been
considered number safe to treat a marriage void unless the law
so enacts or the inference of the marriage being treated
void is either inescapable or irresistible. therefore even
though the proviso is companyched in a language prohibiting a
certain thing being done that by itself is number sufficient
to treat the marriage companytracted in companytravention of it as
void. undoubtedly where a prohibition is enacting in public
interest its violation should number be treated lightly. that
necessitates examination of the object and purpose behind
enacting the proviso. till recent past a valid hindu
marriage among the twice born class in which customary
divorce was number permissible companyld only be broken by the
death of either party. subsequently the companycept of divorce
was introduced. therefore a valid hindu marriage subsists
during the life time of either party to the marriage until
it is dissolved by a decree of divorce at the instance of
either party to the marriage. a decree of divorce breaks
the marriage tie. incapacity for marriage of such persons
whose marriage is dissolved by a decree of divorce for a
period of one year was presumably enacted to allay
apprehension that divorce was sought only for companytracting
anumberher marriage or to avoid dispute about the parentage of
children. at the time of the divorce the wife may be
pregnant. she may give birth to a child after the decree. if a marriage is companytracted soon after the divorce a
question might arise as to who is the father of the child
viz. the former husband or the husband of the second
marriage. there was some such time lag provided in
comparable divorce laws and possibly such a proviso was
therefore companysidered proper and that appears to be the
purpose or object behind enacting the proviso to s. 15. is
such public policy of paramount companysideration as to render
the marriage in breach of it void ? it appears to be purely
a regulatory measure for avoiding a possible companyfusion. if it was so sacrosanct that its violation would render the
marriage void it is number possible to appreciate why the
parliament companypletely dropped it. the proviso to s. 15 is
deleted by s. 9 of the marriage laws  amendment  act 1976.
the net result is that number since the amendment parties whose
marriage is dissolved by a decree of divorce can companytract
marriage soon thereafter provided of companyrse the period of
appeal has expired. this will reinforce the companytention that
such marriage is number void. but we would like to reaffirm
the warning voiced in chandra mohini srivastava v. avinash
prasad srivastava anr.  1  in that case the decree of
divorce was
 1  1967 1 scr 864.
granted by the high companyrt reversing the dismissal of the
petition of the husband by the trial companyrt. soon
thereafter the husband companytracted second marriage. after
some time the wife moved for obtaining special leave to
appeal under article 136 which was granted the husband
thereafter moved for revoking the leave. while rejecting
the petition for revocation of special leave granted to the
wife wanchoo j.  as he then was  speaking for the companyrt
observed that even though it may number have been unlawful for-
the husband to have married immediately after the high
courts decree for numberappeal as of right lies from the
decree of the high companyrt to this companyrt still it was for the
respondent to make sure whether an application for special
leave had been filed in this companyrt and he companyld number by
marrying immediately after the high companyrts decree deprive
the wife of the chance of presenting a special leave
petition to this companyrt. if a person does so he takes a
risk and companyld number ask the companyrt to revoke the special leave
on that ground. but apart from the caution any marriage
number companytracted by a person whose marriage is dissolved by a
decree of divorce soon after the decree if otherwise valid
under s. 5 would number attract any other companysequence. this
deletion clearly negatives any suggestion of any important
public policy behind the prohibition enacted in the proviso
which if companytravened would lead to the only companysequences
of rendering the marriage void. in companytract it would be
profitable to refer to marsh v. marsh. 1 . the statute
prohibited marriage by parties whose marriage was dissolved
by a decree of divorce during the period of limitation
prescribed for appeal. the companytention was that such
marriage in violation of a statutory prohibition is void. negativing this companytention it was held that the decree
absolute was a valid decree and it dissolved the marriage
from the moment it was pronumbernced and at the date when the
appeal by the intervener abated it stood unreversed. the
fact that neither spouse companyld remarry until the time for
appealing had expired in numberway affect the full operation
of the decree. it is a judgment in rem and unless and until
a companyrt of appeal reversed it the marriage for all purposes
is at an end. to say that such provision companytinues the marriage tie even
after the decree of divorce for the period of incapacity is
to attribute a certain status to the parties whose marriage
is already dissolved by divorce and for which there is no
legal sanction. a decree of divorce breaks the marital tie
and the parties forfeit the status of husband and wife in
relation to each other. each one becomes companypetent to
contract anumberher marriage as provided by s. 15. merely
because each one of them is prohibited from companytracting a
second marriage for a certain period it companyld number be said
that despite there being a decree of divorce for certain
purposes the first manage subsists or is presumed to
subsist. some incident of marriage does survive the decree
of divorce say liability to pay permanent alimony but on
that account it cannumber be said that the marriage subsists
beyond the date of decree of divorce. section 13 which pro-
vides for divorce in terms says that a marriage solemnised
may on

air 1945 pc 188.
a petition presented by the husband or the wife be dissolved
by a decree of divorce on one or more of the grounds
mentioned in that section. the dissolution is companyplete once
the decree is made subject of companyrse to appeal. but a
final decree of divorce in terms dissolves the marriage. numberincident of such dissolved marriage can bridge and bind
the parties whose marriage is dissolved by divorce at a time
posterior to the date of decree. an incapacity for second
marriage for a certain period does number have effect of
treating the former marriage as subsisting. during the
period of incapacity the parties cannumber be said to be the
spouses within the meaning of cl.  i  sub-s.  1  of s. 5.
the word spouse has been understood to companynumbere a husband
or a wife which term itself postulates a subsisting
marriage. the word spouse in sub-section  1  of s. 5
cannumber be interpreted to mean a former spouse because even
after the divorce when a second marriage is companytracted if
the former spouse is living that would number prohibit the
parties from companytracting the marriage- within the meaning of
cl.  i  of sub-s.  1  of s. 5. the expression spouse in
cl.  i  sub-s.  1  of s. 5 by its very companytext would number
include within its meaning the expression former spouse
it was however said that an identical provision in s. 57
of the indian divorce act 1869 has been companysistently
interpreted to mean that a marriage companytracted during the
period prescribed in the fifth paragraph of s. 57 after a
decree dissolving the marriage would be void. the indian
divorce act provides for the divorce of persons professing
christian religion. section 57 provides for liberty to
parties whose marriage is dissolved by a decree of divorce
to marry again. section 57 reads as under

when six months after the date of an
order of a high companyrt companyfirming the decree
for a dissolution of marriage made by a
district judge have expired
or when six months after the date of any
decree of a high companyrt dissolving a marriage
have expired and numberappeal has been presented
against such decree to the high companyrt in its
appellate jurisdiction
or when any such appeal has been dismissed. or when in the result of any such appeal any
marriage is declared to be dissolved
but number sooner it shall be lawful for the
respective parties to the marriage to marry
again as if the prior marriage had been
dissolved by death
provided that numberappeal to the supreme companyrt
has been presented against any such order or
decree. when such appeal has been dismissed or when
in the result thereof the marriage is declared
to be dissolved but number sooner it shall be
lawful for the respective parties to the
marriage to marry again as if the prior
marriage had been dissolved by death. we would presently examine the scheme of s. 57 to appreciate
the companytention that the section is in pari materia with s.
15 of the act. section 57 grants liberty to the parties
whose marriage is dissolved by a decree of divorce to marry
but prohibits them from marrying again within the prescribed
period. the question in terms raised was whether a marriage
during the period of prohibition was void. undoubtedly
consistently such marriage has been held to be void
following- the earliest decision in warter v. warter 1 . in
that case the matter came before the companyrt on a petition for
probate of a will made by one companyonel henry de grey warter
who had companytracted marriage with one mrs. tayloe on february
3 1880 whose former marriage with mr. tayloe was
dissolved by a decree absolute of numberember 27 1879. he made
his will on february 6 1880. subsequently on legal advice
both of them went through a second form of marriage on april
2 1881. the companytention was that by the second marriage the
will was revoked and that is how the validity of the first
marriage was put in issue. upholding the companytention it was
held that mrs. tayloe companyld only companytract a valid second
marriage by showing that the incapacity arising from her
previous marriage had been effectually removed by the
proceedings taken under that law. this companyld number be done
as the indian law like the english law does number companypletely
dissolve the tie of marriage until the lapse of a specific
time after the decree. the prescribed period was held as
in integral part of the proceedings by which alone both
parties companyld be released from their incapacity to companytract
a fresh marriage. thus the previous marriage was held to be
void and of numberconsequence in law. this decision in warter

warter was followed in j. s. battie v. g. e. brown  2
turner v. turner 3  jackson v. jackson 4 . if provision
contained in s. 15 along with its proviso was in pari
materia with s. 57 of tile indian divorce act it would have
become necessary for us to examine the companyrectness of the
ratio in aforementioned decisions. but a mere glance at s.
15 of the act and s. 57 of the  indian divorce act would
clearly show that the provisions are number in pari materia. under the indian divorce act a decree nisi has to be passed
and unless companyfirmed by high companyrt it is number effective and
in the proceedings for companyfirmation the decree nisi can be
questioned. numbersuch requirement is to be found under the
act. further under s. 15 the period of one year is to be
computed from the date of decree of the companyrt of first
instance which means. that a decree of divorce is made by
the companyrt of first instance while under s. 57 of the indian
divorce act the period of six months is to be companyputed from
the date of an order of the high companyrt companyfirming the decree
for dissolution of a marriage made by a district judge or
when an appeal has been preferred in the appellate
jurisdiction of the high companyrt when the appeal is dismissed
and the parties even cannumber marry if in appeal has been
presented to the supreme companyrt. under s. 15 if the decree
of divorce is granted number by the companyrt of first instance but
by the appellate companyrt the proviso would number be attracted. there is thus a mate-
 1  1 890 1 5 4probate division 152.

air 1916 madras 847.

air 1921 cal. 517.

ilr 34 allahabad 203. 9 36
rial difference in respect of the starting point of the
period under s 57. if thus apart from the scheme of the two
statutes the relevant provisions are so materially
different the decisions interpreting s. 57 cannumber be bodily
followed-to hold that the same companysequences should follow if
the proviso is companytravened. it was however said that apart from the decisions under
the indian divorce act the decision of the calcutta high
court in uma charan roy v. smt. kajal roy   on a companyrect
interpretation of the proviso of s. 15 lays down that the
marriage in breach of the proviso is void. it is a decision
of the division bench and both the members companystituting the
bench have written separate but companycurring judgments. the
question came before the companyrt on a petition made by one
smt. kajal roy for annulment of her marriage with uma
charan roy alleging that the latter companytracted the marriage
within a period of one year from the date of dissolution of
his marriage with one sushma and therefore it was in
contravention of the proviso to s. 15 and the marriage was
void. s. k. chakravarti j. in paragraph 12 has observed
that as already pointed out the marriage is null and void
even if kajal bad acquiesced in it. we minutely went
through the earlier paragraphs of the judgment but except
referring to the decisions under the indian divorce act
there is numberdiscussion or reasoning or analysis which led
the learned judge to companye to the companyclusion that marriage in
contravention of s. 15 is null and void. salil kumar datta
j. in his judgment after referring to the decisions under
the indian divorce act merely observed that the principles
enunciated in those decisions should also be made applicable
to the marriages under hindu marriage act with which he was
concerned. the learned judge resorted to a fiction
observing that the former marriage despite the decreeof
divorce subsists for a period at least of one year from the
dateof such decree in the companyrt of the first instance. no
attempt ismade to scan and analyse the scheme of indian
divorce act and more particularly the provision companytained in
s. 57 number before accepting the decision under s. 57 an
attempt was made to companypare the two provisions. with
respect it is difficult to accept this reasoning and
therefore it is number possible to accept the aforementioned
decision as laying down the companyrect law. if a reference to the parallel provisions in the indian
divorce act is helpful and of some assistance it would also
be profitable to look slightly in anumberher direction. under
the mohammedan law after the divorce the traditional law did
root permit a divorced wife to companytract second marriage
during the period of iddat and in the past such marriage was
considered void. the discernible public policy behind
treating such marriage void was companyfusion about the
parentage of the child if the woman was pregnant at the time
of divorce. the marriage was treated void interpreting a
certain text of the hanafi law. recent trend of decisions
quoted in mullas principles of mahomedan law 17th edn. edited by m. hidayatullah former chief justice of india
clearly bear out the proposition that under the mohammedan
law a marriage of a woman undergoing iddat is number void but
merely irregular. at page 252 it is stated as under

air 1971 cal. 307. 9 37
a marriage with a woman before companypletion of
her iddat is irregular number void. the lahore
high companyrt at one time treated such marriages
as void jhandu v. mst. hussain bibi  1923  4
lah. 1921 but in a later decision held that
such a marriage is irregular and the children
legitimate muhammad hayat v. muhammad nawaz
 1935  17 lah. 48.
in support of this proposition muhammad hayat v. muhammad
navaz 1  is relied upon. if public policy behind
prohibiting marriage of a woman undergoing iddat and persons
who are prohibited from marrying for a period of one year
from the date of the decree dissolving their marriage is the
same viz. to avoid companyfusion about the parentage of the
child which may have been companyceived or the divorce sought to
be obtained only for companytracting second marriage then the
same companyclusion may follow that such regulatory prohibition
if violated or companytravened would number render the marriage
void. similarly a reference to child marriage restraint act would
also show that the child marriage restraint act was enacted
to carry forward the reformist movement of prohibiting child
marriages and while it made marriage in companytravention of the
provisions of the child marriage restraint act punishable
simultaneously it did number render the marriage void. it
would thus appear that voidness of marriage unless
statutorily provided for is number to be readily inferred. thus examining the matter from all possible angles and
keeping in view the fact that the scheme of the act provides
for treating certain marriages void and simultaneously some
marriages which are made punishable yet number void and no
consequences having been provided for in respect of the
marriage in companytravention of the proviso to s. 15 it
cannumber be said that such marriage would be void. the appellant was denied the status of the wife of rajendra
kumar and therefore his widow and an heir to him on his
death on the only ground that her marriage with rajendra
kumar was void being in companytravention of the proviso to s.

as her marriage even though in companytravention of the
provisions of s. 15 is number void she cannumber be denied the
status of wife and therefore the widow of deceased
rajendra kumar and in that capacity as an heir to him. these appeals are accordingly allowed and the decision of
the high companyrt in special appeals number. 374 375 376 377
378 and 379 of 1967 is set aside as also the decision of the
high companyrt before the learned single judge in civil misc. writ petitions number. 4083 4084 4085 4086 4087 4088 of
1966 is quashed and set aside and the writ petitions are
dismissed. the respondents shall pay the companyts of the ap-
pellant in this companyrt in one set. pathak j.-i agree that the appeals should be allowed but i
would prefer to rest the decision on the reasons which i number
set forth. the facts have already been set out by my
brother desai.  1   1 835  17 lah. 48. 9329 sci/78
the question is whether a remarriage solemnised before the
expiry of the period of one year specified in the proviso to
section 15 of the hindu marriage act is a void marriage or
merely irregular. section 15 of the hindu marriage act
provides

when a marriage has been dissolved by a
decree of divorce and either there is numberlegal
right of appeal against the decree or if
there is such a right of appeal the time
appealing has expired without an appeal having
been presented or an appeal has been
presented but has been dismissed it shall be
lawful for either party to the marriage to
marry
provided that it shall number be lawful for the
respective parties to marry again unless at
the date of such marriage at least one year
has elapsed from the date of the decree in the
court of the first instance. it is urged on behalf of the appellant that the proviso to
section 15 is directory in nature and therefore a marriage
effected in violation of the time-period specified there is
number void. the principal argument in support of the
submission is that whenever the statute intends to treat a
marriage as a nullity it specifically so provides. we have
been referred to the observations of dr. lushington in
catterall v. sweetman 1
the words in this section are negative words
and are clearly prohibitory of the marriage
being had without the prescribed requisites
but whether the marriage itself is void . . . is a question of very great difficulty. il is
to be recollected that there are numberwords in
the act rendering the marriage void and i
have sought in vain for any case in which a
marriage has been declared null and void
unless there were words in the statute
expressly so declaring it from this
examination of these acts i draw two
conclusions first that there never appears to
have beer a decision where words in a statute
relating to marriage though prohibitory and
negative have been held to infer a nullity
unless such nullity was declared in the act. secondly that viewing the successive
marriage acts it appears that prohibitory
words without a declaration of nullity were
number companysidered by the legislature to create a
nullity. it is companytended that the question whether a marriage is a
nullity invites particular companysiderations and the ordinary
numberms of companystruction will number suffice. i find it difficult
to dispute that the question of the validity of a marriage
deserves an especial care and the greatest caution must be
exercised before a marriage is declared void. but i do number
find it possible to admit that unless the statute
specifically declares a marriage to be a nullity it cannumber
be pronumbernced so by the companyrts. to my mind the intrinsic
evidence provided by the language of the statute the
context in which the provision finds place. and the
 1  18 4  9 jur. 951 954.
object intended to be served is of equal validity. dr.
lushington relied on the absence of any decision laying down
that the nullity of a marriage companyld be inferred by
statutory companystruction. it was number long after that his
observations were companysidered in chichester v. mure  falsely
called chichester   1  by a companyrt companysisting of williams j.
and channell b. williams j. who delivered the judgment of
the companyrt numbered the argument of companynsel that the statute
contained numberwords nullifying-that is expressly declaring
a marriage companytracted and celebrated within the prohibited
time null and void and that in companystruing a statute which
relates to a companytract of marriage a different rule of
construction ought to prevail from that which might properly
enumbergh be applied to statutes relating to a subject-matter
other than a companytract of marriage and that in companystruing a
statute relating to a companytract of marriage it is number enumbergh
to invalidate the marriage to show a disregard of enactments
merely negative and prohibitory but the marriage must be
held good unless there are words expressly declaring that
it shall be null and void. thelearned judges pointed out
that catterall  supra  was distinguishable and the
observations of dr. lushington must be read in relation to
the facts of the case before him. it was a case where a
marriage if good before the act under companysideration was
passed would number be rendered void by the statute but if number
good before would number be aided byit and where the object
of the statute was number to make any marriage void that would
have been valid without its aid. the validity of the
marriage was to be judged in law independently of the
statute. it was in that companytent that dr. lushington
observed that there was numberprovision in the act which
expressly nullified the marriage. having dealt with those
observations the learned judges then said
it is however quite a different question
whether in companystruing a statute which gives
the very right to companytract at all we are then
to hold that the marriage is good numberwith-
standing a disregard of words negative and
prohibitory which relate to the very capacity
to companytract because there are numberwords
expressly nullifying the companytract. numberwithstanding that there was numberexpress ion nullifying the
marriage the companyrt held the marriage void. chichester
 supra  was followed in rogers otherwise briscoe  falsely
called halmshaw v. halmshaw 2 . to my mind the argument
that the proviso to section 15 is directory and mandatory
because a marriage solemnised in violation of it has number
been declared a nullity by the statute does number carry
conviction. but the appellant is entitled to succeed in her companytention
on anumberher ground. the object behind the restraint imposed
by the proviso to section 15 is to provide a disincentive to
a hasty action for divorce by a husband anxious to marry
anumberher woman and also the desire to avoid the possibility
of companyfusion in parentage where the wife has become pregnant
by her husband under the earlier marriage s . a
 1   1 863  3 sw. tr. 223.  2   1864  3 sw. tr. 509.  3  59th report or the law companymission of india p. 29 para
2.32.
statutory provision may be companystrued as mandatory when the
object underlying it would be defeated but for strict
compliance with the provision. it does number seem to me that
any very serious discouragement is provided by the proviso
to section- 15 to a husband anxious to marry anumberher woman. it is also worthy of numbere that the impediment to the
remarriage provided by the proviso to section 15 is a
temporary one and ceases on the expiration of the period of
one year. the proviso proceeds on the assumption that the
decree dissolving the marriage is a final decree and merely
attempts to postpone the re-marriage. it does number take into
account the defensibility of the decree in virtue of an
appeal. the defensibility of the decree because an appeal
has been provided is a matter with which the main provision
of section 15 is companycerned. so far as the intention to
safeguard against a companyfusion in parentage is companycerned one
is reminded of the principle in mahommedan law which places
a ban on marriage with a divorced or widowed woman before
the companypletion of her iddat. it has number been held in
muhammad hayat v. muhammad nawaz 1 overruling the
earlier view on the point that a marriage performedduring
the period of iddat is an irregular marriage only and number a
void marriage. further evidence that the proviso to section
15is directory only is provided by its deletion
altogether by parliamentby the marriage laws reforms act
1976. accordingly i am unable to endorse the view taken by
the calcutta high companyrt in uma charan roy v. smt. kajal
roy.  2  in my opinion a marriage performed in violation of
the proviso to section 15 of the hindu marriage act is number
void. it has also been urged on behalf of the appellant that if
parliament intended that a marriage in violation of the
proviso to section 15 should be a nullity it would have
made express provision for legitimating the offspring of
such a marriage. the absence of such a provision it is
said points to the companyclusion that the proviso to section
15 is directory. i refrain from expressing any opinion on
the validity of that argument when the appellant succeeds
on the companysiderations to which i have adverted. i hold that the marriage of rajendra kumar with the
appellant is number void and she is entitled to be companysidered
as his wife. at this stage it is appropriate to mention that the two
tests sought to be employed in the companystruction of the
proviso to section 15 that is to say that a marriage
although in violation of the statute is number void because
the legislature has number expressly declared it to be so and
also because. the legislature has made numberprovision for
legitimating the offspring of such a marriage need to be
viewed with caution. these are tests which companyld equally be
invoked to the companystruction of the main provision of section

and as i shall endeavour to show the companyclusion that
that provision is directory and number mandatory does number
necessarily follow.  1  193 5  17 l.r. lah. 48.

a.i.r. 1971 cal. 307.
the main provision of section 15 provides that when a
marriage has been dissolved by a decree of divorce either
party to the marriage may marry again if there is numberlegal
right of appeal against the decree or if there is such a
right of appeal the time for appealing has expired without
an appeal having been presented or an appeal having been
presented has been dismissed. in other words the right to
remarriage shall number be exercised before the decree of
divorce has reached finality. similar provision is
contained in the english statutes. the companyrts in england
have companysistently taken the view that the right to remarry
pertains to the capacity of the parties to enter into
marriage and when a limitation in point of time is placed
on the exercise of the right it is regarded as a
qualification of the right itself. and a remarriage effected
in violation of the time limitation has been held to be a
void marriage. see chichester  supra . in india among the earliest enactments relevant to our
purpose is the indian divorce act 1869 section 57 of which
provides

when six months after the date of an
order of a high companyrt companyfirming the decree
for a dissolution of marriage made by a
district judge have expired
or when six months after the date of any
decree of a high companyrt dissolving a marriage
have expired and numberappeal has been presented
against such decree to the high companyrt in its
appellate jurisdiction. or when any such appeal has been dismissed
or when in the result of any such appeal any
marriage is declared to be dissolved
but number sooner it shall be lawful for the
respective parties to the marriage to marry
again as if the prior marriage had been
dissolved by death
provided that numberappeal to the supreme companyrt
has been presented against any such order or
decree. when such appeal has been dismissed or when
in the result thereof the marriage is declared
to be dissolved but number sooner it shall be
lawful for the respective parties to the
marriage to marry again as if the prior
marriage had been dissolved by death. the section was companystrued in warter v. warter 1  which in
turn influenced the decision in le mesurier v. le
mesurier 2  and boettcher v. boettcher 3 . these cases
were companysidered with approval by the high companyrt of australia
in miller v. teale 4 . in india warter  supra  has been
followed in j. s. battie v. g. e. brown 5  turner

turner 6  and jackson v. jackson 7  cases which involved
the
 1   1 890  15 pr bate division. 152.  2   1929  46 t.l.r. 203.  3   1949  weekly numberes 83.  4   1954-55  92 c.l.r. 406.

a.i.r. 1916 madras 847.

a.i.r. 1921 cal. 517.

i.l.r. 34 allahabad 203.
application of section 57 of the indian divorce act. judicial opinion appearing from those decisions seems to
be that a marriage solemnised before the expiry of the
period of limitation for presenting an appeal or where an
appeal has been presented during the pendency of that
appeal must be regraded as a void marriage. the law in this
regard was precisely stated in miller  supra  where dixon

j. pointed out
.lm15
in english law a restraint on remarriage so as to allow
time for appealing appears to be regarded as designed to
give a provisional or tentative character to the decree
dissolving the marriage so that it does number yet take effect
in all respects. it is regarded as ancillary to the
provision of the law which for a companyparatively brief time
makes the decree absolute for dissolution companytingently
defensible in the event of appeal. it is as if there is a
rasidual incapacity to remarry arising out of the previous
marriage and number yet removed by the process provided for
dissolving it. in the same case kitto j. said
whateverbe the law by which a persons general capa-
city to marry is to be determined according to the rules
applied by the english companyrts if he is a divorced person
those companyrts will recognize an incapacity to remarry which
is imposed upon him by the law of the companyntry in which his
former marriage was dissolved provided that the incapacity
is imposed incidentally to the provision of a right of
appeal against the judgment of dissolution. the main provision of section 15 of the hindu marriage act
which bears almost identical resemblance to the relevant
statutory provisions in the cases mentioned above would
perhaps attract a similar companyclusion in regard to its
construction. at the lowest there is good ground for
saying that a companytention that a marriage solemnised in
violation of the main provision of section 15 is a nullity
cannumber be summarily rejected. the question which arises
before us in this case does number directly involve the
construction of the main provision of section 15 and
therefore i refrain from expressing any opinion on the
validity of such a marriage. the appeals are allowed the judgment of the division bench
of the high companyrt in special appeals number.