Legal lacings apart, the question is whether the appellant or first respondent in these Appeals (hereinafter called Saraswathy Amma and Padmavathy Amma, in that order) was the wife of deceased Krishnan Nair.
2. On Krishnankutty Nair's death, Padmavathy Amma filed O.S.318/83 for a declaration that she was his wife. Likewise, Saraswathy Amma filed O.S.439/83 for a like declaration. The trial court held that both were wives of Krishnankutty Nair. The appellate Court held that Padmavathy Amma was the wife, and that the marriage with Saraswathy Amma was not valid. Krishnankutty Nair married Padmavathy Amma in the year 1950 (date and month not slated) according to the custom of the community. Thereafter, they executed a Deed of Dissolution Ext. XI on 17-2-1976 in accordance with S.6 of the Madras Marumakkathayam Act. Krishnankutty Nair then married Saraswathy Amma on 15-9-1977. Ext.B1 is the certificate of marriage. Later, Krishnankutty Nair made a settlement of some of his properties in favour of Padmavathy Amma on 14-9-1979 by Ext.AZ, describing her as his wife. On 25-6-1983 Krishnankutty Nair died, raising the hornet's nest for the two women.
3. On the strength of Ext.A4-A certificate of heir ship dated 28-10-1983 issued by a Tahsildar, Ext.A2 settlement and Exts. A5 to A7 letters, 'Padmava thy Amma contended that she was the widow of Krishnankutty Nair, entitled to inherit his properties, including service benefits. Saraswathy Amma, mainly on the strength of Ext.B1 certificate of marriage, also contended that she was the wife of deceased Krishnankutty Nair. As noticed, the appellate Court held that the marriage between Padmavathy Amma and Krishnankutty Nair subsisted, that Ext.X1 was sham, and that the marriage between Krishnankutly Nair and Saraswathy Amma was invalid, for these reasons.
4. Learned counsel for Saraswathy Amma contended that a Marumakkathayam governed by the Madras Marumakkathayam Act, 1933, was entotic. to dissolve his marriage by recourse to S.6 of that Act. That Section postulates two modes of dissolution - one with the aid of the Court, and the other by execution of a registered instrument of dissolution upon the consent of the parties (S.6 (a)). Marumakkathayam Act stood repealed by the Hindu Marriage Act, 1955, called the' 'H.M. A.ct' hereinafter. Thereafter, the Kerala ioint Hindu Family Abolition Act 1976 was also enacted. S.4 of the H.M.Act states that, 'any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of that Act, will cease to have effect, unless otherwise saved by the Act'. S.4(b) further states that 'any law in force at the commencement of the H.M. Act shall cease to have effect in so far as it was inconsistent with any provision of the H.M. Act'. S.13 of the H.M. Act deals with divorce, end states the grounds upon which a marriage could be dissolved.
5. Counsel for Sairaswathy Amma submits that by reason of S.29(2) of the H-M. Act, S.6 of the Marumakkathayam Act Is saved from exposure to S.4. On the contrary, counsel for Padmavathy Amma submits that S.29 saves only the right 'to' dissolution. S.29(2) reads:
"Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of the Hindu Marriage, whether solemnized before or after the commencement of this act." (emphasis supplied)
6. A Division Bench of this court in Kesavanv. Krishnamma (1985 KLT 17) held that a cause of action that arose prior to repeal, would remain in force despite repeal. In Gopalakrishnan v. Sarasamma (AIR 1980 Ker.109) this court held that the right to obtain divorce under the Nair Act would remain in force by reason of S.29 of the H.M. Act. Shri. N. Subramanian, Counsel for Padmavathy Amma, who argued his case with thoroughness, relying on a decision of this court in A.K. Krishna Filial v. P.A. Subhadra Amma (1970 KLT 442), submitted that what, is saved by S.29(2) is the right' to' obtain dissolution, and not the right 'of dissolution. He elaborated his argument and submitted that the right to seek divorce was available, but that it was limited to the grounds under S.13, and that the grounds under the earlier enactment would not be available, as those would be inconsistent with S.4 of the H.M. Act. If something in the earlier law, custom or usage is not inconsistent with the legislation in question there is no need to save it. What is saved or what requires to be saved, is only what is inconsistent with the Statute, which will not survive, but for the saving. Therefore, the question is whether any of the grounds under S.6(a) is saved. I think it is saved because there is nothing else to be saved. If what is saved is only right to obtain dissolution, there is no need to save it because, S.13 itself makes provision to obtain dissolution. Saving cannot be of something, which needs no saving, and saving can only be of something, which otherwise the repealing Act would destroy.
7. The view that what is saved is the right to obtain dissolution on the grounds available earlier, is supported by the decision of the Punjab and Haryana High Court in Jagjit Singh v. Mohinder Kaur (ILR (1969) 1 P & H 538). The Court observed:
"If under custom or under special enactment a Hindu has aright to obtain dissolution, on grounds other than those enumerated under S.13 of the H.M.Act, he is entitled to avail of the same".
What S.29(2) saves, could only be something otherwise destroyed by S.4. What could it be, other than the right available under S.6 (a)?
8. There is difficulty in accepting the submission that what is saved is only the right to 'dissolution, and not right of dissolution, for other reasons as well. Again, it is difficult to perceive or draw any distinction between 'of and, these two prepositions generally achieve the same meaning. Familiar legislative instances are seen in the expressions, "in pursuance oF' and "pursuant to". There is no real or appreciable distinction between the expression "to" and "or in the context of dissolution. However, I consider it unnecessary to express a final opinion on this question.
9. The 'decision in this case must turn on Ext.X1 and the subsequent conduct of parties. When the Court has to form an opinion regarding relationship between persons, the opinion expressed by conduct as to existence of relationship, is relevant (S.50 of the Evidence act). Distribution and devolution of family properties are often valuable evidence for this purpose. The decisions in seshammal & officers v. Kup¬panaiyyangar (AIR 1926 Mad. 475) and Dolgobinda Paricha v. Nimai Charan Misra & Ors. (AIR 1959 SC 914) are authorities for this proposition.
10. Ext.X1 and Ext.A2 require consideration. Ext.X1 deed of dissolution was made on 17-2-1976. Three and half years later, Krishnankutty Nair and Padmavathy Amma were living together as husband and wife, and they considered themselves so, as is clear from the recitals in Ext.A2 Settlement Deed. Krishnankutty Nair while settling certain properties on Padmavathy Amma, recited that she was his wife, that she fulfilled her duties as a wife faithfully, and that he reposed much love iri her. If Ext.A2 is to be accepted - it has to be, the only conclusion is that Ext.X1 was not meant to be acted upon. Padmavathy Amma herself states that it was not meant to be acted upon, and that she agreed to the execution of it only because she was assured by her husband that it was not intended to be used as an instrument of dissolution. She was persuaded into the belief that such an instrument was necessary to get certain benefits or educational concessions for her children. The court below beHeved this explanation. I am also inclined to believe the version of Padmavathy Amma on this aspect. Perhaps, the real intention of Krishnankutty Nair was not to get any such financial benefits for the children, but only -to persuades Saraswathy Amma to the belief that he was a free man, and that he could marry her. That is not important. Fact remains that Ext.X1 was not intended to be acted upon, and that it was not acted upon. Irrespective of the operation of S.6 of the Marumakkathayam Act, there was no dissolution of marriage. When the first marriage subsists, the second is not valid in the eye of law. Authority is legion for this proposition and if it is needed, it is found in Mohammed Ikram Hussain v. State of U.P. (AIR 1964 SC 1625) and Smt.Yamunabai Anantrao Adhavv.
Anantrao Shivram Adhav (AIR 1988 SC 644). Therefore, during the subsistence of the marriage with Padmavathy Amma, Saraswathy Amma could be considered only as a mistress and not as a wife in law.
11. It was argued by counsel for Saraswathy Amma that in the light of Ext.B1 Certificate of Marriage between Saraswathy Amma and Krishnankutty Nair, the marriage must be upheld and that without setting aside the same, Padmavathy Amma could not get a declaration that she was the wife. The mere fact that a certificate was issued is no authority for its authenticity. That apart, it is unnecessary to challenge it. If a document is void, a person affected by it can ignore the same and file a suit seeking substantive reliefs. (See Sanjay Kaushish v. D.C. Kaushish (AIR 1992 Del. 118) and Indramani Bedbagis v. Hema Dibya & Ors. (AIR 1977 Ori. 88).
12. It was then argued that nomination made by Krishnankutty Nair in her favour should entitle Saraswathy Amma to receive service benefits. This argument also cannot be accepted. Rule 71 of Kerala Service Rules (Part III) defines' family' and it includes wife' etc. Nomination cannot take away the rights of legal heirs. As observed by the Supreme Court in Sarbati Devi v. Tisha Devi (AIR 1984 SC 346) and Narayani Amma v. Saraswathy (1991 (1) KLT 450), a nominee is only a trustee for legal heirs, and the right of the legal heirs cannot be taken away by nomination.
13. It follows that the appellant Saraswathy Amma was not the wife of Krishnankutty Nair, that Ext.X1 is not valid in law, and that the nomination in her favour does not confer any right which, general law docs not. The Court below was justified in its conclusion.
The Appeals are without merit and arc accordingly dismissed. Parties will suffer their costs.