FACULTY OF LAW

ASSIGNTMENT ON
LAXMIBAI V. ANASUYA - CASE ANALYSIS

PAPER CODE IV
SUBJECT FAMILY LAW II

SUBMITTED BY SUBMITTED TO
ANKIT KUMAR DR. RICHA SAXENA
SONKER
LL.B. (HONS) 2 year
SEMESTER IV
SECTION A

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 Table of Contents

 INTRODUCTION
 Aim
 Objective
 Research Methodology
 Facts of case
 judgment
 Critical analysis
 Bibliography

INTRODUCTION
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During the subsistence of the first marriage entering into a second marriage is
illegal in India and the relationship arises from the same is held to be void. The
law has been very clear on this point. Yet, second marriages are a common
practice prevalent in Indian society. The apparent contrast between the law and
social practice regarding second wives in India has led to a situation where they
are not properly protected under the law.
This research paper demarcates whether a woman whose marriage is void is
entitled to the right of maintenance or not. Personal laws relating to marriage do
not allow bigamy or polygamy except for Muslim law1. Such a marriage is
treated as void. The law has made this point quite clear. Nevertheless, second
marriage is a common practice in our Indian society. As a result of the aforesaid
contrast between the law and social practice, second Hindu wives in India are
not properly protected under the law.2
The issue of right to maintenance to the second wife has been faced by various
High Courts as well as the Supreme Court, and the courts have given different
views depending upon the facts and circumstances of each case, thus giving
diverse interpretation to the expression “wife” under Section 125 of the Code of
Criminal Procedure.
The study perpetually deals with two leading case laws which have been a
considerable precedent in many judgments.

AIM

To provide a brief analysis of the cases and restricting my research work to

justified context. The following review/analysis is attempted to bring the factual
contents and also the various made by the researcher to conclude the research
work.

OBJECTIVE

1
G.C.V Subba Rao, “Family Law in India”, Narendra Gogia & Company; 10th ed. 2016, p. 154.
2
Samarth Trigunayat, CNLU, Inter-caste & Inter-Religious Marriages: Social And Legal Issues, August 21,
2014.

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 The study is based on the judgments made by the High Courts of the respective
state in purview of all the provision and previous judgments. The objective of
this research paper are as follows:
 Whether the provision of Hindu Marriage Act of 1955 need to be
applied..
 Whether the interpretation of provision of Hindu Succession Act of 1956
flawed.
Recent trends of society with regard to the marriage as an institution and
approach of judiciary will be analyzed so as to improve their analytical and
critical thinking on fast growing ,dynamic society and its impact on family.

RESEARCH METHODOLOGY

This project work has been carried out following descriptive and analytical
approach. This study is done with the help of secondary data. This secondary
information has been obtained from published sources such as books, journals,
newspapers, websites, government publications etc.

FACTS OF CASE:

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1. It is the defendants revision petition filed challenging the order passed by the
trial Court, which held neither the suit is hit under Section 9 of the Code of
Civil Procedure nor the provisions of the Hindu Succession Act.
2. For the purpose of convenience, the parties are referred to as they are referred
to in the original suit.
3. O.S.No.167/2008 is filed by Anasuya wife of Ningappa aged 45 years,
against Laxmibai wife of Ningappa who was aged 60 years, on the date of the
suit. The plaintiff’s case was that Ningappa married Laxmibai, she was his first
wife. As he did not have any children through Laxmibai, he married Anasuya;
through her also he had no children. In other words, defendant is the first wife
plaintiff is the second wife of Ningappa.
4. Ningappa died on 06.11.2007 intestate, issueless therefore, she filed the suit
for partition and separate possession of her half share in the suit schedule
properties. Which are more particularly described in paragraph No.2 of the
plaint on the ground that both the widows have inherited his estate equally.
5. After service of summons, the defendant filed her written statement. She
contended that age of the plaintiff is shown as 45 years. She contended that age
of the plaintiff is shown as 45 years. It means that the plaintiff is born after
1956, Hindu Succession Act. Therefore, the second wife cannot claim any
property of the deceased Ningappa. Therefore suit is barred by Hindu
Succession Act and as we as Section 9 of CPC therefore the question of
effecting a partition would not arise.
6. The trial Court framed the following issues:
 Whether the plaintiff is entitled to half share in the suit property?
 Whether the suit is hit by Section 9 of CPC and the provisions of Hindu
Succession Act as contended in Para 2 of the written statement?
 Whether the defendant is entitled for compensatory cost of 10,000/- from
the plaintiff?
 To what decree or order?
7. Issue No.2 dealing with the maintainability of the suit was treated as
preliminary issue and both the counsel appearing for the parties were heard on
preliminary issue.
8. The trial Court held Section 10 (1) of the Hindu Succession Act, 1956
categorically contemplates that the widow and if there are more widows than

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one, then all the widows together take one share in accordance with the rules
enshrined in the Hindu Succession Act. Therefore, he was of the view that the
suit is maintainable and plaintiff is entitled to her share in the suit schedule
properties in terms of the Hindu Succession Act. Aggrieved by the said order
passed by the trial Court, the defendant has preferred this revision petition.
9. The learned counsel for the petitioner, assailing the impugned order contends
no doubt under Rule 1 of Section 10 of the Act, it is stated if there are more
widows than one then all the windows together would be entitled to one share.
In other words, on the day the Succession Act cannot into force, if there are two
wives, if the husband dies, both the widows would take one share. The said
provision had no application to a person claiming to be the second wife, after
coming into force of the Act, becoming widow. Therefore, he submits the
averments in the plaint do not show any cause of action for filing the suit for
partition and therefore, the suit is liable to be dismissed.
10. Per contra, the learned counsel for the respondent supported the impugned
order.
11. In the light of the aforesaid facts and the rival contentions, the point that
arises for consideration in this revision petition is as under: Whether the second
wife, whose marriage is hit by Section 5 of the Hindu Marriage Act, which a
declared as void under Section 11 of the Act could be a widow under section 10
of the Act.
12. Under the Hindu Law, marriage is a Samskara and not a contract. Hindu law
recognized eight forms of marriage. However, legislation of laws relating to
Hindu Marriage began on the year 1829 and it has been amended and new law
enacted from time to time. After the independence, the Hindu Marriage Act,
1955 (Act No.25 of 1955) came to be enacted by the parliament amending the
law relating to Hindu Marriage among the Hindus. Prior to the enactment of the
Act, there was no prohibition for bigamy. On the contrary Hindu Law
recognized the bigamy. For the fist time with the passing of the said Act,
bigamy was prohibited by law. Section 5 of the Hindu Marriage Act, 1955
prescribes conditions for a valid Hindu Marriage. It reads as under:-
5. Conditions for a Hindu marriage. A marriage may be solemnized between
any two Hindus. If the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage:

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(ii) at the time of the marriage, neither party.
a. is incapable of giving a valid consent to it in consequence of unsoundness
of mind; or
b. though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and
the procreation of children; or
c. has been subject to recurrent attacks of insanity.
(iii) the bridegroom has completed the age of (twenty one years) and the bride,
the age of (eighteen years) at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the
custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each others, unless the custom or usage
governing each of them permits of a marriage between the two.
13. Section 11 of the Hindu Marriage Act reads as under:
Void marriages.- Any marriage solemnized after the commencement of this Act
shall be null and void and may, on a petition presented by either party thereto
against the other party, be so declared by a decree of nullity if it contravenes
any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.
14. Section 17 of the Act reads as under:
Punishment of bigamy.- Any marriage between two Hindus solemnized after
the commencement of this Act is void if at the date of such marriage either
party had a husband or wife living; and the provisions of sections 494 and 495
of the Indian Penal Code (45 of 1860), shall apply accordingly.
15. Section 494 and 495 of the Indian Penal Code reads as under:
Section 494- Marrying again during lifetime of husband or wife.- Whoever,
having a husband or wife living, marries in any case in which such marriage is
void by reason of its taking place during the life of such husband or wife, shall
be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine. Exception. This section
does not extend to any person whose marriage with such husband or wife has
been declared void by a Court of competent jurisdiction. nor to any person who
contracts a marriage during the life of a former husband or wife, if such
husband or wife, at the time of the subsequent marriage, shall have been

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continually absent from such person for the space of seven years, and shall not
have been heard of by such person as being alive within that time provided the
person contracting such subsequent marriage shall, before such marriage takes
place, inform the person with whom such marriage is contracted of the real state
of facts so far as the same are within his or her knowledge.
Section 495- Same offence with concealment of former marriage from person
with whom subsequent marriage is contracted.-
Whoever commits the offence defined in the last preceding section having
concealed from the person with whom the subsequent marriage is contracted,
the fact of the former marriage, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to
fine.
16. A reading of the aforesaid provisions makes it clear that after the passing of
the Hindu Marriage Act, 1955, one of the conditions for Hindu Marriage is,
neither party should have a spouse living at the time of the marriage. If the said
condition is not fulfilled, there is no marriage in the eye of law. It is a
mandatory requirement under clause (1) of Section 5 of the Act. Such a
marriage shall be null and void as is clear from Section 11 of the Act. If on the
date of the marriage either party had a husband or wife living, it constitutes an
offence under section 494 and 495 of the Indian Penal Code. Such an offence is
punishable with imprisonment of either description for a term which may
extend to seven years and shall also be liable to fine. If the marriage is
contracted by concealing the earlier marriage, then the offence is punishable
with imprisonment of either description for a term which may extend to 10
years and shall also be liable to fine. Therefore, after the commencement of the
Marriage Act, under no circumstances, bigamy would be recognized or tolerated
and on the contrary it is an offence and punishable. However, Section 16 of the
Hindu Marriage Act, which was substituted by Act 68 of 1976 declared that
notwithstanding that the marriage is null and void under Section 11, any child of
such marriage who would have been legitimate, if marriage had been valid,
shall be legitimate, whether such child is born before or after the
commencement of the Marriage Laws, (Amendment) Act, 1976 and whether or
not a decree of nullity is granted in respect of that marriage under this Act and
whether or not the marriage is held to be void otherwise than on a petition under
this Act. The children born out of such wedlock have no role to play in the
commission of this offence. They are protected by treating them as legitimate

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children, for the purpose of inhering the property of the parents. It is in this
background we have to appreciate the provisions of Hindu Succession Act,
which was enacted one year thereafter.
17. The Hindu Succession Act, 1956 for short hereinafter referred to the Act
was also enacted to amend and codify the law relating to intestate succession
among the Hindus. Section 5 and 6 of the Act dealt with the instances where the
Act is not applicable, in a other matters, the Act has an overriding effect. In the
Act, the word heir has been defined under Section 3 (f). It means any person,
male or female, who is entitled to succeed to the property of an interstate under
this Act. Section 8 deals with general rules of succession in the case of males. It
provides, the property of a male Hindu dying intestate shall devolve according
to the provisions of this chapter. Firstly, upon the heirs, being the relatives
specified in Class-I of the schedule. If there are no heir of Class-I, then upon the
heirs, being the relatives specified in Class-II of the schedule. If there are no
heir of any of the two classes, then upon the agnates of the deceased and if there
are no agnates, then upon the cognates of the deceased.
Section 10 deals with the distribution of property among heirs in Class-I of the
schedule. It reads as under:
Distribution of property among heirs in class 1 of the schedule.- The property
of an intestate shall be dived among the heirs in class 1 of the Schedule in
accordance with the following rules:-
Rule-1. The intestates widow, or if there are more widows that one, all the
widows together, shall take one share.
Rule-2. The surviving sons and daughters and the mother of the intestate shall
each take one share.
Rule 3. The heirs in the branch of each pre-deceased son or each predeceased
daughter of the intestate shall take between them one share.
Rule-4 The distribution of the share referred to in Rule 3
(i) among the heirs of the branch of the pre-deceased son shall be so made
that his widow (or widows together) and the surviving sons and
daughters gets equal portions; and the branch of this predeceased sons
gets same portion;
(ii) (ii) among the heirs in the branch of the pre-deceased daughter shall be
so made that the surviving sons and daughters get equal portions.

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JUDGMENT:-
Rule 1 of the aforesaid provision makes it clear that if a Hindu male dying
intestate, his estate will devolve on his widows. If there are more widows than
one, all the widows together, shall take one share. In other words his other heirs
i.e., sons and daughters and the mother of the intestate shall each take one share.
In the case of widows more than one, all of them put together, would take one
share.
There is no confusion or ambiguity in the provision. The confusion, which is
evident from the judgment of the trial Court is the widow referred to in Section
10 also includes a widow out of a void marriage i.e., second wife out of a
second marriage is a widow after the death of her husband vis-vis the widow,
the first wife out of the first marriage. As set out earlier, this Act came to be
enacted subsequent to the enactment of Hindu Marriage Act. The Hindu
Marriage Act exclusively deals with the law relating to the marriages.
Succession Act deals with the right to the property. Therefore, in the absence of
any express words in the Succession Act, the relationship of husband and wife,
the concept of marriage, legitimate and illegitimate children born out of such
marriage, voidness of marriage have to be gathered from the provisions of the
Hindu Marriage Act. Therefore, when Class-I heir includes a widow, it means a
woman whose husband is dead and who has not married again, wife means a
woman married to a man. Without a marriage there cannot be a widow. That
marriage should be a valid marriage under law. Therefore, word widow
mentioned among Class-I heirs is a lady who was validity married under the
provisions of the Hindu Marriage Act and who has acquired the status of a
widow by virtue of the death of her husband. If her marriage with a person is
not valid, is void under Class-I of the schedule of the Hindu Succession Act,
1956. The reason why Rule I of Section 10 refers to if there are more widows
than one, all the widows together shall take one share, is when the Hindu
succession Act came into force, as there was no prohibition for Hindu marrying
more than one wife, it is possible that a male had married and was having more
than one wife. After coming into force of the Act, the Hindu male dies leaving
behind two wives whose marriage was valid before coming into operation of the
Act, it was provided that those wives will take one share of her husband’s estate
under Section 8 of the Act. Under the Hindu Marriage Act, the parliament
declared that if a person who marries during the subsistence of an earlier

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marriage i.e:, a person who marries while he has spouse living at the time of the
marriage and such marriage is solemnized after the commencement of this Act,
it shall be null and void and provisions of Section 494 and 495 of the Indian
Penal Code applies to such marriage and is punishable under the Hindu
Marriage Act. Certainly the parliament had no intention of conferring any right
on the wife who is a party to the offence of bigamy and gave her a share in the
property of her deceased husband. Any such interpretation to the provisions of
the Hindu Succession Act would nullify the object with which the Hindu
Marriage Act was enacted. In other words, it runs counter to the concept of the
bigamy being punishable and the marriage being void, which the parliament
wanted to eradicate by legislation.
In spite of a binding judgment of the High Court being pointed out, the learned
trial Judge firstly without properly understanding the scheme of the Act, both
the Marriage Act and Succession Act has tried to distinguish the judgment on
the ground that in the said judgment Section 10 has not been discussed. It is to
be pointed out that a trial Judge on whom the judgment of this Court is binding
cannot so lightly ignore the binding judgment of this Court on the ground that
particular statutory provision is not noticed. No such power is conferred on the
trial Judge. It would result in uncertainty and take away the value of binding
decision of this Court. The approach of the trial Court is wholly unsatisfactory
and it shows total disregard of statutory provisions as well as the judgment of
the High Court and rule of law.
In the light of the aforesaid discussion, it is clear from the averments in the
plaint, if the plaintiff was aged 45 years in 2008, she was born in 1963
therefore, she was married only after 1955 Act came into force. Admittedly, the
defendant was married earlier to her. Therefore, the plaintiff is the second wife.
Her marriage with deceased Ningappa was null and void. She did not get the
status of a wife. Therefore, she did not get the status of a widow so as to get the
benefit under Section 10 of the Act. On the basis of the averments in the plaint
itself, the plaintiff has no right to seek partition and separate possession of her
alleged half share against the second wife. She is not heir under the Hindu
Succession Act.
For the aforesaid reasons, the judgment of the trial Court is perverse, contrary to
law and therefore it is liable to be set aside. Accordingly, it is set aside. Hence
court pass the following order:
(a) The revision petition is allowed.
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(b) The impugned order is hereby set aside.
(c) The suit of the plaintiff is dismissed, as the averments in the plaint do not
disclose the cause of action. Plaint is rejected.
(d) No costs.

CRITICAL ANALYSIS
In Laxmibai v. Anasuya, 58 a childless married man without putting an end to
his first marriage remarried W1, after the enactment of the 1955 Act. Upon his
death a dispute arose over his property between both of his wives. The second

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wife here raised an interesting but absolutely untenable argument, that the
Hindu Succession Act, 1956, places the widow of the intestate as a class-I heir,
but section 10, rule 1 says, if there are more widows than one, the entire widow
together shall take one share. According to her contention that was strangely
enough accepted by the trial courts contemplates a situation of the intestate
surviving multiple widows and providing rules for distribution of the property
as amongst them. In the present case she said there were two widows left by the
intestate, and the share of each should be half and thus she pleaded that her half
share be handed over to her, a contention that was vehemently opposed by the
first wife on the ground that the expression ‘widow’, means a woman who was
a party to a valid marriage with the intestate only, and since this woman was a
party to a bigamous marriage that has not only be declared as void by the civil
laws, it has been made a penal offence under the criminal law of the country
with stringent punishments, she cannot be given the status of a widow of the
intestate.

The present court in detail explored the concept of void marriage, status of
bigamy in India; its consequences both civil and penal, punishment for
committing the offence of bigamy, permission of unlimited polygamy for Hindu
men prior to the enactment of the Act of 1955, and held that section 10 refers to
a situation, where a man married prior to 1955 and dies post 1956, leaving
behind more than one widow. In such cases all such marriages being valid, each
of them can take the label of a widow within the meaning of section 10 but this
is the only situation that is contemplated under this section. By no stretch of
imagination, can it include within its fold a woman who has been a party to a
void and prohibited marriage under the Hindu law. Thus her claim to inherit the
property along with the first widow of the intestate was dismissed rightly by the
high court.
The case though saw a right culmination, raises deep concern owing to a totally
incorrect lower court pronouncement. Considering the fact that in India, more
than 90% of the cases are settled at the trial court level, had it not been the
determination of the first widow, a frail 63 year old woman, there was a
likelihood of injustice being done in the name of the law through an office
created to dispense away justice? Hindu Succession Act, 1956, cannot be read
in isolation and has to be read along with the matrimonial legislation in this

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regard. Succession rights flow from a valid marriage only that confers
legitimacy on the rights of the children.
The high court rightly described the judgment of the trial court as perverse,
contrary to law and therefore liable to be set aside. The high court also
deliberated upon an interesting fact. Nowhere in the plaint had the claimant
mentioned the year of her marriage whether it was after coming into force of the
HMA, 1955, or prior to it, but she claimed her status as the widow of the
intestate. The court noted that at the time of the litigation before the court in
2008, she was only 45 years old as per her age depicted in the plaint. Thus if she
was born in 1963, her marriage could not have been solemnized prior to 1955,
when polygamous marriages amongst Hindus were permissible Marriage under
all matrimonial laws is a union, imposing upon each of the spouses certain
marital duties and gives to each of them certain legal rights. The necessary
implication of marriage is that the parties are to cohabit. Each spouse is entitled
to the comfort or consortium of the other.

BIBLIOGRPHY:
BOOKS:

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Sir Dinshah Fardunji Mulla, “Hindu Law”, 22ndEd, 2016.

G.C.V Subba Rao, “Family Law in India”, Narendra Gogia & Company; 10th Ed
(2016)

Paras Diwan, “Family Law”, Allahabad Law Agency; 9th edition (2012)

Poonam Pradhan Saxena, Family Law Lectures - Family Law II, Lexis Nexis;
First edition (2011).

WEBSITES/ JOURNALS REFERRED:

Law Times Journal, “Critical Analysis of Restitution of Conjugal Rights as per

Hindu Marriage Act”, http://lawtimesjournal.in/critical-analysis-of-restitution-
of-conjugal-rights-as-per-hindu-marriage-act/ (September 29,2017)

http://weddings.iloveindia.com/features/types-of-hindu-marriages.html, last
visited on 18/09/2017.

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