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  • G.P Murdeshwar, for the applicant. I submit that when a person contracts a child marriage outside British India, he commits no offence and his guardian is not liable to be punished for promoting such a marriage. The Child Marriage Restraint Act, 1929, extends to British India only. Reading the preamble with section 1(2) of the Act, it is clear that the Act aims at restraining the solemnisation of child marriages in British India. If it was intended to restrain the performance of child marriages outside British India, a provision similar to that in section 4 of the Indian Penal Code would have been made in this Act. For instance the Indian Railways Act (IX of 1890), section 1(2) makes such a provision, as also section 1 of the Indian Telegraph Act (Act XII of 1885). Section 4 of the Indian Penal Code, while it enacts that its provisions apply to any offence committed by a native Indian subject of Her Majesty outside British India, makes it clear by an Explanation that the word “offence” in that section includes acts committed outside British India which if committed in British India would be punishable under the Code. Section 4 of the Indian Penal Code, therefore, does not apply to this case. The lower Courts have relied on section 188 of the Criminal Procedure Code as though it enacts substantive law. Section 188, however, relates to procedure only. While section 4 of the Indian Penal Code fixes the liability of the persons named therein, section 188 of the Criminal Procedure Code provides the Court and the procedure for their trial. The latter section is complementary to the former. The view that section 4 of the Indian Penal Code reproduces a part of section 188 of the Criminal Procedure Code and is thus superfluous has no basis. Section 188 occurs in a part of the Criminal Procedure Code which relates to “Jurisdiction of the Criminal Courts in Inquiries and Trials”. It does not contain, any substantive law. Though the Avord “offence” in section 188 includes any act made punishable by any law in force in, British India, the power to deal with the offence committed outside British India as if it took place in British India does not arise under that section, unless the act committed outside British India is made punishable by a substantive enactment.
Judges
  • Sir John Beaumont, C.J
  • Mr. N.J Wadia, J.
Acts
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  • G.P Murdeshwar, for the applicant. I submit that when a person contracts a child marriage outside British India, he commits no offence and his guardian is not liable to be punished for promoting such a marriage. The Child Marriage Restraint Act, 1929, extends to British India only. Reading the preamble with section 1(2) of the Act, it is clear that the Act aims at restraining the solemnisation of child marriages in British India. If it was intended to restrain the performance of child marriages outside British India, a provision similar to that in section 4 of the Indian Penal Code would have been made in this Act. For instance the Indian Railways Act (IX of 1890), section 1(2) makes such a provision, as also section 1 of the Indian Telegraph Act (Act XII of 1885). Section 4 of the Indian Penal Code, while it enacts that its provisions apply to any offence committed by a native Indian subject of Her Majesty outside British India, makes it clear by an Explanation that the word “offence” in that section includes acts committed outside British India which if committed in British India would be punishable under the Code. Section 4 of the Indian Penal Code, therefore, does not apply to this case. The lower Courts have relied on section 188 of the Criminal Procedure Code as though it enacts substantive law. Section 188, however, relates to procedure only. While section 4 of the Indian Penal Code fixes the liability of the persons named therein, section 188 of the Criminal Procedure Code provides the Court and the procedure for their trial. The latter section is complementary to the former. The view that section 4 of the Indian Penal Code reproduces a part of section 188 of the Criminal Procedure Code and is thus superfluous has no basis. Section 188 occurs in a part of the Criminal Procedure Code which relates to “Jurisdiction of the Criminal Courts in Inquiries and Trials”. It does not contain, any substantive law. Though the Avord “offence” in section 188 includes any act made punishable by any law in force in, British India, the power to deal with the offence committed outside British India as if it took place in British India does not arise under that section, unless the act committed outside British India is made punishable by a substantive enactment.
Judges
  • Sir John Beaumont, C.J
  • Mr. N.J Wadia, J.
Acts
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Smart Summary

Judgment Summary

Factual and Procedural Background

The accused were prosecuted under section 6 of the Child Marriage Restraint Act, XIX of 1929, on the charge that they "permitted, or failed to prevent," the marriage of their son who was under the age of 18 years. The marriage itself was solemnised at Goa, which the opinion records as being outside British India. The trial was conducted by the District Magistrate of Kanara, the place where the accused resided at the time of the charge. A conviction was recorded below; the present opinion determines whether that conviction was legally sustainable. The Crown was represented by Dewan Bahadur P.B. Shingne (Government Pleader) and G.P. Murdeshwar appeared in reply for the defence.

Legal Issues Presented

  1. Whether the conviction under section 6 of the Child Marriage Restraint Act for permitting or failing to prevent a child marriage solemnised outside British India (at Goa) was legally maintainable.
  2. Whether section 188 of the Criminal Procedure Code (re-enacting section 9 of the Extradition Act) enacts substantive criminal law (i.e., can make an act committed outside British India an offence) or is confined to procedural effect only.
  3. Whether the Child Marriage Restraint Act, XIX of 1929, by its language and scope, penalises child marriages solemnised outside British India or is confined to child marriages contracted within British India.
  4. Whether an act done within British India that promotes or prepares for a marriage solemnised outside British India (in this case, Goa) can constitute an offence under section 6 of the Child Marriage Restraint Act.

Arguments of the Parties

Prosecution (Government Pleader — Dewan Bahadur P.B. Shingne)

  • Section 188 of the Criminal Procedure Code enacts substantive law and not merely procedure; the word "offence" in that section means an offence punishable by any law and can thus reach acts committed outside British India by treating them as if committed in British India.
  • The Child Marriage Restraint Act makes child marriage punishable (Act XIX of 1929) and so a child marriage solemnised in Goa can be dealt with as if it occurred in British India under section 188.
  • Relying on prior authorities (e.g., Queen-Empress v. Daya Bhima), it was argued that before the 1898 amendment of section 4 IPC similar prosecutions had been maintained and that section 188 has been relied upon in earlier cases.
  • In the alternative, the accused had committed acts in British India preparatory to the marriage in Goa (made preparations in British India), which amounted to "an act to promote the marriage" and thus fell within section 6.

Defence (G.P. Murdeshwar)

  • The prosecution's case consistently was that the offence took place in Goa; the accused were not called upon at trial to meet a case that the offence took place in British India.
  • Promotion in British India of a marriage that is not an offence under the Act (because solemnised outside British India) cannot be treated as an offence under the Act.
  • Section 6 presupposes a "child marriage" which, in the context of the Act and its preamble, means a child marriage contracted in British India — the Act extends only to British India (section 1(2)).
  • Relied on judicial observations in Empress v. S. Moorga Chetty and the decision in Queen-Empress v. Ganpatrao Ramchandra to support the submission that the Act does not penalise marriages solemnised outside British India.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Empress v. S. Moorga Chetty Holds that the solemnisation in Goa of what would be a child marriage according to British law is not an offence (referred to as authority that an act outside British India may not be an offence under an Act confined to British India). The court relied on this ruling to support the proposition that the Child Marriage Restraint Act, being expressly confined to British India, does not make child marriages solemnised in Goa an offence.
Queen-Empress v. Daya Bhima Held that a person who committed criminal breach of trust at Daman (Portuguese India) could be tried as if the offence took place in British India; the decision relied upon section 188 of the Criminal Procedure Code. The Government Pleader relied on this case to argue that section 188 operates substantively; the court observed that the reasoning in that case assumed an offence had been committed and that the decision had relied on an earlier statutory provision (section 8 of the Foreign Jurisdiction and Extradition Act) then in force.
Reg v. Chill Holds that a European British subject is liable to be tried in Bombay for an offence committed in a Native State. Noted by the Government Pleader as supporting the general proposition that trials in British India can be held for offences committed outside British India; the court referenced it among authorities but distinguished the present statutory context.
Empress v. Maganlal Considered whether the accused was "found" at Ahmedabad within the meaning of Section 9 of the Extradition Act, 1879 (a procedural/locational question). The Government Pleader cited it to support the contention that section 188 contains a substantive provision; the court noted that the present point and Empress v. S. Moorga Chetty were not discussed in that decision.
Queen-Empress v. Ganpatrao Ramchandra Referenced by the defence as being in point on construction of the Child Marriage Restraint Act (supporting limitation to British India). The court accepted the defence submission that observances in such authorities supported the view that the Act is limited in operation to British India.

Court's Reasoning and Analysis

Beaumont, C.J. delivers the leading reasoning. The court framed the matter historically and textually around two related statutory provisions: section 4 of the Indian Penal Code (substantive) and section 188 of the Criminal Procedure Code (procedural), which substantially re-enacted sections 8 and 9 of the Foreign Jurisdiction and Extradition Act, 1879.

The court proceeded in the following analytical steps, expressed in the language of the opinion:

  1. Historical and statutory context: Sections 8 and 9 of the 1879 Act spawned the present section 4 IPC (substantive reach to acts outside British India in defined classes) and section 188 CrPC (procedural provision re-enacting section 9). Section 9 (procedural) was re-enacted as section 188 of the Criminal Procedure Code; section 8's substantive content was later re-enacted in amended form in section 4 IPC in 1898.
  2. Meaning of "offence": The Explanation to section 4 IPC provides that "offence" includes every act committed outside British India which, if committed in British India, would be punishable under the Code. Thus, to bring an act committed outside British India within the reach of prosecution by virtue of section 4, the underlying act must be one which the Indian Penal Code (or another statute containing a similar provision) makes punishable when committed in British India.
  3. Application to the present statute (Child Marriage Restraint Act): Celebrating a child marriage is not punishable under the Indian Penal Code; the Child Marriage Restraint Act contains no provision analogous to section 4 of the IPC that would itself render an act outside British India punishable as though committed within British India. Section 1(2) of the Act expressly extends the statute to the whole of British India, and the court concluded that the Act is limited in its operation to British India and "only strikes at marriages contracted in British India."
  4. Narrow construction of section 188 CrPC: The court rejected the Government Pleader's contention that section 188 enacts substantive law and can convert acts committed outside British India into offences simply by its own force. The court held that section 188 is procedural in character and cannot, by itself, create a substantive offence where none exists under the applicable law for British India.
  5. On the alternate contention (promotion/preparatory acts in British India): The court held that section 6 of the Child Marriage Restraint Act aims at permitting or failing to prevent a marriage which is penal under the Act's substantive provisions; it does not impose a penalty for permitting a marriage which is lawful (i.e., lawful because solemnised outside British India and thus not made penal by the Act). Thus, preparatory acts or promotion in British India of a marriage solemnised outside British India do not, on the facts and law presented, constitute an offence under section 6.
  6. Procedural fairness point noted: The defence pointed out that the prosecution had consistently maintained the offence took place in Goa and the accused were not called to meet a case that the offence occurred in British India; the court observed this procedural fact in considering the alternative argument about promotion in British India.

Holding and Implications

Holding: The court allowed the application, set aside the conviction, and ordered that any fine paid be refunded. The judgment records "Conviction set aside." N.J. Wadia, J. concurred.

Implications (as stated or directly derived from the opinion's reasoning):

  • The Child Marriage Restraint Act, XIX of 1929, is limited in operation to British India; therefore a marriage solemnised outside British India (in this case Goa) is not an offence under that Act.
  • Section 188 of the Criminal Procedure Code is procedural in character and does not, by itself, create substantive offences for acts committed outside British India that are not made offences by some substantive law applicable to British India.
  • Section 6 of the Child Marriage Restraint Act penalises permitting or failing to prevent marriages that are themselves penalised under the Act; it does not penalise permitting a marriage which is lawful because it fell outside the territorial scope of the Act.
  • Direct effect on the parties: the conviction against the accused was quashed and any fine paid was ordered to be refunded.

The summary above is confined to and derived from the statements and reasoning contained in the provided opinion text. No additional facts or outside materials have been introduced.

Show full summary ...

    Narayan Mudlagiri Mahale v. Emperor

    [Beaumont, C.J:—

    The other view is that when the Court is given power to deal with an act committed outside British India as if it is committed in British India, it has the power to punish the offender as if the act was committed in British India.]

    The prosecution must first prove that the act in question is an “offence” punishable under some enactment and it is only then that the Court mentioned in section 188 can deal with it. If the act in question is punishable under the Indian Penal Code or the Railways Act or the Telegraph Act, it is an offence, to deal with which section 188 indicates the Court and the procedure. The Child Marriage Restraint Act is expressly confined to British India and the solemnisation in Goa of what would be a child marriage according to the British laws is not an offence. See Empress v. S. Moorga Chetty. Nor is it an offence under any other law. The application of section 188 is therefore excluded. If the view of the lower Courts is correct, a Native Indian subject of His Majesty would be guilty under the Arms Act, if he is found in possession of a gun in Hyderabad (Deccan) without holding a license and nobody has yet suggested that he is liable to be so punished.

    Dewan Bahadur P.B Shingne, Government Pleader, for the Crown. I submit that section 188 of the Criminal Procedure Code enacts substantive law and not merely adjectival law. The word “offence” means an offence punishable by any law. A child marriage is made punishable by Act XIX of 1929 and the offence can be dealt with as if it took place in British India. In effect, the act though committed outside British India becomes liable to be dealt with as though it is committed in British India. section 4 of the Indian Penal Code as it now stands was enacted in 1898. Prior to 1898, that section applied to Government servants only. Even so it was held in 1888 that a person who committed criminal breach of trust at Daman (Portuguese India) could be tried as if the offence took place in British India. See Queen-Empress v. Daya Bhima. Their Lordships in that case relied wholly on section 188 of the Criminal Procedure Code.

    [Beaumont, C.J The Court there assumed that the act of the accused at Daman was an offence and did not discuss the point which had been dealt with in Empress v. S. Mcorga Chetty.]

    In that case, the Sessions Judge had acquitted the accused on the ground that the acts attributed to the accused at Daman did not constitute an offence as the Penal Code was not in force at Daman and that section 188 had no application. The High Court set aside the acquittal on the ground that section 188 applied.

    There is another ruling which takes substantially the same view. Reg v. Chill, which holds that a European British subject is liable to be tried in Bombay for an offence committed in a Native State.

    The case of Empress v. Maganlal(3) also supports my contention, although the point actually considered was whether the accused was “found” at Ahmedabad within the meaning of Section 9 of the Extradition Act, 1879.

    [Beaumont, C.J There also the present point and the case of Empress v. S. Moorga Chetty are not noticed.]

    Section 188 of the Criminal Procedure Code reproduces the provision of Section 9 of the Extradition Act and therefore this case is relevant to my contention that section 188 contains a substantive provision of law. Section 9 of the Extradition Act was repealed when section 188 of the Criminal Procedure Code was enacted.

    [Beaumont, C.J What has happened to Section 8 of the Extradition Act? If it is still in force, the act of the present accused would amount to an offence. It is clear that section enacts substantive law and section 9 deals with procedure only.]

    Section 8 seems to have been repealed when its provisions were re-enacted in the present section 4 of the Indian Penal Code in 1898.

    [Beaumont, C.J The position then is this. Section 8 of the Extradition Act is repealed and its provisions are re-enacted in the present section 4 of the Penal Code which does not apply to the present case. Section 9 of the Extradition Act which relates to procedure is now section 188 of the Criminal Procedure Code.]

    The acquittal of the accused in this case would lead to serious consequences. It would be very easy to evade the provisions of the Act XIX of 1929 by performing marriages in Native States or French or Portuguese India. The object of the Act would thus be wholly frustrated.

    My second point is that the accused permitted in British India an act which would be an offence under Act XIX of 1929 and was therefore guilty under section 9. The evidence shows that he made all preparations in British India for the marriage at Goa. He has done “an act to promote the marriage”.

    G.P Murdeshwar, in reply. The case of the prosecution has always been that the offence took place in Goa. The accused were never called upon to meet the case now made, namely, that the offence took place in British India. Apart from that, promotion in British India of a marriage at Goa which is not an offence under Act XIX of 1929 cannot be an offence under that Act. Section 6 begins with the words “Where a minor contracts a child marriage”. Having regard, to the preamble and section 1 of the Act, these words mean “Where a mince contracts in British India a child marriage the solemnization of which in British India the Act seeks to restrain”. The promotion is accessory to the principal act, the performance of the marriage, which is not an offence. I rely on the observations of Sargent, J. on page 347 and of Melvill, J. on page 350 in Empress v. S. Moorga Chetty. The case of Queen-Empress v. Ganpatrao Ramchandra is also in point.

    Beaumont, C.J:—The accused in this case were prosecuted under section 6 of the Child Marriage Restraint Act, XIX of 1929, in that they permitted, or failed to prevent, the marriage of their son, who was under the age of 18 years. The marriage in question took place at Goa, outside British India, and the accused were tried by the District Magistrate of Kanara, where the accused were residing at the time of the charge. The question which we have to determine is whether the conviction was legal.

    In general the subject of trials in British India for offences committed outside British India is dealt with by section 4 of the Indian Penal Code, and section 188 of the Criminal Procedure Code. It is instructive to note the history of those two sections. They are taken substantially from sections 8 and 9 of the Foreign Jurisdiction and Extradition Act, 1879. Section 8 provides:

    “The law relating to offences and to criminal procedure for the time being in force in British India shall, subject as to procedure to such modifications as the Governor General in Council from time to time directs, extend—

    (a) to all European British subjects in the dominions of Princes and States in India in alliance with Her Majesty; and

    (b) to all Native Indian subjects of Her Majesty in any place beyond the limits of British India.”

    This section deals with the subject matter of section 4 of the Indian Penal Code as it now exists, though the wording is by no means identical. Then section 9 provides that such persons may be dealt with as if the offences had been committed in the place in British India where they may be found. Section 9 seems to me to deal purely with procedure, and to be a corollary to the substantive enactment contained in section 8. Section 9 was repealed in 1882, and was re-enacted in section 188 of the Criminal Procedure Code of that year, which is in the same terms as the corresponding section in the present Code. In 1898 section 4 of the Indian Penal Code was amended and enacted in its present form. Up till that date the section had applied only to Government servants, but the amended section comprised also the two classes of persons covered by section 8 of the Foreign. Jurisdiction and Extradition Act, 1879, namely, Native Indian sujects in any place beyond British India, and British subjects within Native States.

    The Explanation to the section provides that the word “offence” includes every act committed outside British India which, if committed in British India, would be punishable under this Code. It is clear that celebrating a child marriage is not punishable under the Indian Penal Code, and the present case cannot therefore be brought under that section, but the Government Pleader has argued that section 188 of the Criminal Procedure Code is not confined purely to procedure, but makes it a substantive offence for anybody to do an act which would be an offence if committed in British India. This view prevailed in the lower Courts, but I am unable to accept that construction of the section. It seems to me that a consideration of the history of the section and the language employed shows that it deals with procedure and nothing else. So far as material for the present purpose, what the section enacts is that when a Native Indian subject of Her Majesty commits an offence at any place without and beyond the limits of British India, he may be dealt with in respect of such offence as if it had been committed at any place within British India at which he may be found. “Offence” is defined by section 4, clause (o), as any act or omission made punishable by any law for the time being in force. To attract the section it must be shown that an accused has been guilty of an act or omission made punishable by some law (which must mean some law applicable to British India) for the time being in force. In support of his argument the Government Pleader has relied strongly on Queen-Empress v. Daya Bhima where it was held before the amendment to section 4 of the Indian Penal Code, that native Indian subjects who committed in Portuguese territory acts which would have amounted to criminal breach of trust if committed in British India could be prosecuted under section 188 of the Criminal Procedure Code of 1882 at the place in British Indian territory where they were subsequently found. The reasoning of the Court is not given in full, and the Judges seem to have assumed that an offence had been committed, although generally an act constituted an offence by the Indian Penal Code would not be an, offence if committed outside British India (see Empress v. S. Mcorga Chetty. The assumption, however, may have been justified on the language of section 8 of the Foreign Jurisdiction and Extradition Act of 1879, which was then in force, but has since been repealed.

    Where the Court is dealing with an act committed outside British India by an Indian subject which would be an offence punishable under the Indian Penal Code if it had been committed in British India, section 4 of the Indian Penal Code, as it now exists, constitutes the act an offence, and it can be dealt with under section 188 of the Criminal Procedure Code. Cases arising under other Statutes which contain a provision similar to section 4 of the Indian Penal Code (cf. the Railways Act, 1890, and the Indian Telegraph Act, 1885) can be similarly dealt with. But the Child Marriage Restraint Act, XIX of 1929, contains no such provision, and the prosecution must prove that the Act makes penal a child marriage performed outside British India. By section 1(2) it is provided that the Act extends to the whole of British India, including British Baluchistan and the Sonthal Parganas. Section 2 defines a “child marriage” as meaning a marriage to which either of the contracting parties is a child, and “child” is defined as a person who if a male, is under eighteen years of age, and if a female, is under fourteen years of age. Sections 3 and 4 make it punishable for a male to contract a child marriage; section 5 makes it punishable to perform a child marriage; and section 6 makes it punishable for any person having charge of a minor who contracts a child marriage, whether as parent or guardian or in any other capacity, to promote the marriage or permit it to be solemnised or negligently fail to prevent it from being solemnised. It is to be noticed that the Act is not confined to child marriages contracted between members of any particular race or community, and if it be penal for a Hindu father to promote the marriage in Goa of his son aged seven years, it is equally penal for an English father to promote the marriage of his son aged seventeen years in London. In my opinion, the Act is limited in its operation to British India and only strikes at marriages contracted in British India. I am of opinion, therefore, that the child marriage contracted in this case outside British India is not an offence under the Act, and if it is not an offence under the Act, there is no offence to which section 188 of the Criminal Procedure Code can apply.

    It was lastly argued by the Government Pleader that even if a child marriage celebrated outside British India did not constitute an offence, still permitting within British India such a marriage would be an offence, and that such permission was proved in the present case. Apart from the fact that this was not really the charge made against the accused, I am of opinion that section 6 only aims at permitting or failing to prevent a marriage which is made penal under the earlier sections, and does not impose a penalty for permitting a marriage which is lawful.

    The application must, therefore, be allowed and the conviction set aside. Fine, if paid, to be refunded.

    N.J Wadia, J.:—I agree.

    Conviction set aside.
    J.G.R
    section 188 of the Criminal Procedure Code
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    Narayan Mudlagiri Mahale v. Emperor
    (Aug 23, 1935)