1. The short and interesting question that arises in this civil miscellaneous appeal is whether a marriage between two minors, when the bridegroom has not completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage, is no marriage in the eye of law.
2. The facts are not in dispute. The appellant is the wife. Admittedly, she was aged about six years at the date of her marriage with the respondent who was then eleven yours old, the date of marriage being Vaisakha Bahula Panchami in Hevilambi year. (1957) On 6-5-1958, the father of the appellant is alleged to have executed a settlement deed conferring certain rights on the appellant and the respondent. In 1967 misunderstandings arose between the appellant's father and the family of the respondent. The appellant's father then turned out the respondent from his house and excited a revocation deed on 1-5-1967 purporting to revoke the settlement deed executed by him earlier on 6-5-1958. On 9-5-1967, he issued a registered notice to the respondent repudiating the marriage between the appellant and the respondent. To that the respondent, sent a reply warning the appellant's father against the consequences he may have to face in case he got the appellant married to another person. The appellant never joined the respondent at any time and, therefore, the respondent filed an application under Sec. 9 of the Hindu Marriage Act for restitution of conjugal rights. That application was resisted by the appellant, among other grounds on the ground that no marriage took place and even otherwise, any such marriage would been void marriage under Section 5 of the said Act. The learned Additional Subordinate Judge found that the marriage between the parties was true, valid and created a legal relationship of husband and wife. He, therefore, granted a decree for restitution of conjugal rights. At the date when the petition was filed by the respondent under Section 9 of the Act, the appellant was a minor and was represented by her father and guardian.
3. Mr. Poorniah, the learned counsel appearing for the appellant contended that the marriage of the appellant with the respondent is vole within the meaning of clause (iii) of Sec. 5 of the Act and, therefore, it is not necessary that any application should be filed by the appellant for annulment of that marriage either under section 11 or under section 12 of the Act.
4. Mr. Sivaprasada Rao appearing for the respondent strenuously contended that a reading of the relevant provisions, sections 5, 11, 12 and 18 of the Act, would make it clear that it was not the intention of the Parliament that a marriage solemnized between two minors should come within the purview of either sec. 11 or section 12, for the reason that, under section 18, any person who procures such a marriage would be liable for punishment.
5. We may, therefore, read the relevant provisions.
6. Sec. 5. A marriage may be solemenized between any two Hindus if the following conditions are fulfilled, namely:
i) neither party has a spouse living at the time of the marriage:
ii) neither party is an idiot or a lunatic at the time of the marriage;
iii) the bridegroom has completed the age of eighteen years and the bride the age of fifteen 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;
iv) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between two;
vi) where the bride has not completed the age of eighteen years, the consent of her guardian in marriage, if any, has been obtained for the marriage.
7. S. 11. Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Sec. 5.
8. S. 12. (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voldable and may be annulled by a decree of nullity on any of the following grounds, namely:—
a) that the respondent was impotent at the time of marriage and continued to be so until the institution of the proceeding; or
b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under section 5, the consent of such guardian was obtained by force or fraud; or
d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner;
2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage—
a) on the ground specified in clause (c) of sub-section (1), shall be entertained if—
i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied:—
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.
9. Every person who procures a marriage of himself or hereself to be solemnized under this Act in contravention of the conditions specified in clauses (iii), (iv), (v) and (vi) of section 5 shall be punishable:—
(a) in the case of a contravention of the condition specified in clause (iii) of section 5, with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both;
(b) in the case of a contravention of the condition specified in clause (iv) or clause (v) of section 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both; and
(c) in the case of a contravention of the condition specified in clause (iv) of Section 5, with fine which may extend to one thousand rupees.
10. Section 5 lays down the conditions to be satisfied for solemnizing a Hindu marriage. Clause (iii) of Section 5 imposes a condition that the bridegroom should have completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage. In other words, a marriage between the bridegroom, who has not completed the age of eighteen years and the bride, who has not completed the age of fifteen years cannot be solemnized. Where the bride has not completed the age of eighteen years, the consent of her guardian for the marriage has to be obtained as laid down in clause (vi) of section 5. Sections 11 and 12 deal with void and voidable marriages. A marriage performed in contravention of clauses (i), (iv) and (v) of section 5 will be null and void. It does not automatically become null and void unless a petition is presences by either party to the marriage for declaration of their marriage as null and void on the ground of contravention of any one of the conditions specified in clauses (i), (iv) and (v). Voidable marriages are referred to in section 12.
11. What Mr. Sivaprasada Rao contends is that, as there is no reference at all to clause (iii) of section 5 either in sec. 11 or in sec. 12 the question of declaring a marriage solemnized between two minors as null and void does not arise. In other words, it is his case that, notwithstanding the fact that the marriage of two minors has been brought about in contravention of clause (iii) of section 5, such a marriage cannot be avoided in the absence of any provision for avoidance of such marriage in Secs. 11 and 12. In support of his argument he calls in aid section 18, which provides for prosecution and punishment for contravention of clause (iii) of section 5. It should be remembered that section 18 provides for prosecution and punishment not only for contravention of the conditions specified in clause (iii) but also for contravention of the conditions specified in clauses (iv), (v) and (vi) of Sec. 5. Section 11 only provides for the relief to be obtained in cases of marriages solemnized contrary to the conditions laid down in clauses (i), (iv) and (v) of section 5. Sec. 18 is introduced to punish persons who procure prohibited marriages as specified in clauses (iii) (iv), (v) and (vi) of section 5. The object sought to be achieved by the two provisions is different. The mere declaration of a marriage as null and void under section 11 will not achieve the social object sought to be achieved by the Act, unless there is also the follow-up action by way of punishment as provided in section 18. It is for that reason that section 18 is introduced. It cannot, therefore, be said that the Parliament intended to make marriages between two minors only punishable and not render them null and void under clause (iii) of section 5. What we are concerned now is not with the penal consequences that flow from the marriage solemnized in contravention of the conditions specified in section 5, but whether a marriage solemnized in contravention of clause (iii) of section 5 is void. The Parliament has advisedly fixed the age of eighteen years for a bridegroom and the age of fifteen years for a bride, so that the marriages of boys and girls below the prescribed ages shall not be solemnized by the parents or guardians. It is for the reason that the marriageable age of a bride is fixed as fifteen years that clause (vi) has been introduced so that the consent of the parent or guardian may be obtained if she has not completed the age of eighteen years. If we are to agree with Mr. Sivaprasada Rao that, by reason of the fact that section 11 and 12 do not at all provide for annulment of a marriage solemnized in contravention of clause (iii) of section 5, then it will throw open once again the flood-gates of child marriages. The object of the Hindu Marriage Act is to prevent and eradicate the evil of child marriages. That is why the marriageable ages of the bridegroom and bride are prescribed. A marriage between the bridegroom and the bride, if their ages do not satisfy the requirements of clause (iii) of section 5, cannot be solemnized as if is prohibited under clause (iii) of section 5 it is not necessary that, in the event of contravention of clause (iii) of section 5, either party to the marriage should rush to the court for declaring that marriage as null and void. Such a marriage is void ab initio. So far as clause (i), (iv) and (v) of section 5 are concerned, a petition will have to be presented for the reason that there may be dispute as to whether one of the parties has already a spouse living at the time of the marriage or whether they are within the prohibited degrees of relationship or are sapindas as specified in clauses (iv) and (v). It is for that reason that section 11 specifically speaks of a petition being presented by either party to the marriage for declaration of that marriage as null and void. Where the bride and bridegroom are minors, as in this case there is no question of presenting any petition. Such a marriage is no marriage in the eye of law and it cannot be solemnized in the event of the bride and bridegroom being below the ages prescribed in clause (iii) of section 5. It is for that reason that there is no reference to clause (iii) of section 5 either in section 11 or section 12.
12. One of us (Obul Reddi, J.) (as he then was) in Pallamsetty v. D. Sriramulu (AIR 1968 Andhra Pradesh, 375) while referring to a marriage between two minors settled by their parents, observed.
“All that has happened in the instant case is a contract was entered into to perform a marriage which is prohibited by law and is opposed to public policy. The mere intention to celebrate such a inarriage, which if celebrated will be ab initio void, is not sufficient to disentitle the plaintiff from recovering what he gaeve as presents to the prospective bride.”
13. Therefore, the absence of any reference to clause (iii) of section 5 either in section 11 or section 12 does not make a marriage, which is ab initio void, valid, legal and binding. The learned counsel for the respondent, however, placed reliance upon a decision of the Judicial Commissioner of Himachal Pradesh in Smt. Naumi v. Narotam (AIR 1963 Himachal Pracesh 15) where it has been held that a marriage of a girl below fifteen years of age is neither void nor voidable. For the reasons recorded we are unable to agree with the view expressed by the Judicial Commissioner.
14. In the result, the Judgment and decree of the Court below are set aside and the appeal is allowed, but in the circumstances, without costs.