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Andhra High Court Pinninti Venkataramana And Anr. vs State on 9 August, 1976 Equivalent citations: AIR 1977 AP 43 Author: B Divan Bench: B Divan, A Kuppuswami, Muktadar JUDGMENT B.J. Divan, C.J.
- Since both these matters raise a common point of law, both of them have been placed before the Full Bench for deciding the following question:
"Whether a Hindu Marriage governed by the provisions of the Hindu Marriage Act, 1955 where the parties to the marriage or either of them are below their respective ages as set out in Clause (iii) of Section 5 of the Hindu Marriage Act, is void ab initio and is no marriage in the eye of law."
In Crl. R.C. of 1975, the facts of that the petitioner No. 1 was convicted by the Judicial First Class Magistrate, Rajam for an offence punishable under Section 494 I.P. C. And petitioner No. 2 was convicted for an offence punishable under Section 494 read with Section 109, I.P.C. Both of them filed appeals and the appellate Court confirmed the convictions of both the petitioners, but modified their sentences to that of payment of Rs. 200/- and in default of payment of fine, each of the petitioners was sentenced to undergo rigorous imprisonment for one month. Against their convictions and sentences, the petitioners came by way of revision to this High Court.
- When the revision application came up before one of us (Muktadar, J.) on behalf of the petitioners, reliance was placed on the judgment of the Division Bench of this Court in P.A. Saramma v. G. Ganapatulu (). In that case, the Division bench has held that a marriage, which is in contravention of Clause (iii) of Section 5 of the Hindu Marriage Act is void ab initio and is no marriage in the eye of law. Since it was felt that the view taken by the Division Bench was not in accordance with the provisions of the Hindu Marriage Act, the matter was referred to a larger Bench. Thereafter, the matter came up before Chinappa Reddy and Punnayya, JJ. And, by their order dated March 22, 1976, they referred the matter to a Full Bench and thereafter the matter has come before us.
- In Criminal Miscellaneous Petition No. 809 of 1976, the Ist Petitioner is the husband and others are co-accused with him in a complaint filed by the Ist respondent-wife in the Court of the Judicial First Class Magistrate , Siddipet, Medak District. The Ist respondent in this criminal miscellaneous Petition filed a criminal complaint, C.C. No. 323 of 1976, in the Court of the Judicial First Class Magistrate, Siddipet, against her husband (Ist petitioner) and ten others alleging that her husband had committed an offence punishable under Section 494 of the Indian Penal Code and that the other accused had committed an offence punishable under Section 494 read with Section 109 I.P.C. According to the petitioner in this petition at the time of the marriage i.e. in the year 1959 he was 13 years of age and the Ist Respondent was 9 years of age. The husband contends that in view of the decision of the Division Bench of this Court in P.A. Saramma v. G. Ganapatulu , the marriage between him and the Ist respondent was void ab initio and no marriage in the eye of law and hence the action of the Ist petitioner in marrying a girl did not amount to an offence punishable under
Section 494. Under these circumstances in this criminal miscellaneous petition, the petitioners have prayed that the prosecution in C.C. No. 323 of 1976 on the file of the Judicial First Class Magistrate, Siddipet, be quashed. Since the question involved in this criminal miscellaneous petition is the same as the one raised in Criminal Revision Application No. 190/75, which stood referred to a Full Bench, this Criminal miscellaneous petition was also directed to be posted along with the criminal revision application. It is under these circumstances that both these matters have been heard together by this Full Bench.
- In order to appreciate the rival contentions in these cases, it is necessary to refer to some of the provisions of the Hindu Marriage Act, 1955. The preamble of the Act shows that it is an Act to amend and codify the law relating to marriage among Hindus. Section 4 provides:
'Save as otherwise expressly provided in this Act-
(a) any test, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act."
It is well settled law that the old Hindu Law, as it prevailed prior to the enactment of the Hindu Marriage Act is to continue in force except to the extent to which that law was altered by the provisions of the Hindu Marriage Act, 1955. It is in the light of this well settled principle that arises for our consideration.
- Section 5 lays down the conditions for a Hindu marriage and it is in these terms:
"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;
(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 of usage governing each of them permits of a marriage between the two;
(v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two
consent of the petitioner before the court is vitiated by force or fraud that the marriage becomes voidable and liable to be annulled by a court of competent jurisdiction. It is thus clear that neither in Section 11 nor in Section 12 is there any provision for what is to happen if the condition regarding the ages of the parties to the Marriage, by clause (iii) of Section 5, is violated in any particular case. When the provisions of Sections 11 and 12 of the six clauses of Section 5, violation of Clauses (i) (iv) and (v) renders the marriage null and void, whereas violation of clause (ii) renders the marriage voidable. Voilation of the guardian in marriage has been obtained by force or fraud, again renders the marriage voidable. But neither in Section 11 nor in Section 11 nor in Section 12 is there any provision for what is to happen if a marriage is solemnized in violation of the provisions of clause (iii) of Section 5.
- It is true that the opening of Section 5 would indicate that each one of the six clauses can be construed as laying down a condition precedent for solemnization of marriage. However, the legislature has given an indication in Section 11 that it is only contravention of clauses (i) (iv) and (v) of S. 5 that renders the marriage void ab initio i.e. null and void and the Court may subsequently declare the marriage null and void by a decree of nullity if either party chooses to present a petition in that behalf. The Legislature has also indicated that a marriage solemnized in contravention of clause (ii) of Section 5 does not render the marriage null and void, but renders it voidable and liable to be annulled by a decree of nullity; whereas if the bride has not completed the age of eighteen years, it is not the absence of the consent of the guardian in marriage that renders the marriage voidable and liable to be annulled, but it is only if the consent of the guardian was obtained by force or fraud, in a case governed by clause (vi) of Section 5 that the marriage becomes voidable and liable tobe annulled by a decree of nullity. Thus the scheme of the Act is that it is not the violation of any one of the six conditions in Section 5 that renders the marriage null and void or voidable but it is only the violation of clauses (i) (iv) and (v) which renders the marriage null and void. Violation of clause (ii) renders the marriage voidable and violation of clause (vi) ipso facto does not render the marriage voidable, but it is only when the consent of the guardian, is obtained by force or fraud, that the marriage becomes voidable. In view of the scheme of the Act, we have to examine as to what are the consequences of violation of clause (iii) since the legislature , in terms has not provided for what is to happen in case of violation of clause (iii) of Section 5. The only indication that is to be found in the Hindu Marriage Act is in Section 18, which provides punishment for contravention of certain conditions laid down for bigamy, and that section is in the following terms:
Every person who procures a marriage of himself or herself 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 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 (vi) of Section 5 with fine which may extend to one thousand rupees."
But violation of clause (i) of Section 5, which requires that neither party has a spouse living at the time of the marriage is punishable not under Section 18, but under Section 17, which provides that any marriage between two Hindus solemnized after the commencement of the Act is void if, at the date of such marriage, either party had a husband or safe living ; and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly. It is noticeable that, in case of contravention of clause (i) both Section 17 and Section 12 provide that the marriage is void, but Section 17 further provides for punishment for such contravention. Thus, the Legislature has not thought fit to provide for any punishment for contravention of clause (ii) of Section 5.
- This analysis of the different provisions of the Hindu Marriage Act clearly brings out the fact that the Legislature itself has made a distinction between contravention of one or the other clauses of Section 5 and such contravention is to be visited with different consequences. In case of contravention of some clauses, the marriage is null and void and in case of contravention of some other clauses, it becomes voidable and in case of contravention of another clause, it is voidable if the consent of guardian is vitiated by force or fraud; but the Legislature in terms has not provided except by way of punishment in Section 18 for violation of Clause (iii) of Section 5. Therefore, it is not possible to read the different clauses of Sec. 5 as laying down conditions precedent.
- It may be pointed out that, under the Child Marriage Restraint Act, 1929 which was in force prior to the enactment of the Hindu Marriage Act 1955, the legal position was that though the persons connected with the solemnization of a marriage in contravention of the provisions of the Child Marriage Restraint Act were liable for punishment, the marriage itself was not rendered void or null and void.
- This position was clarified by the decision of Jagadisan , J. Sitting singly, in Sivanandy v. Bhagavathyamma,. There it was pointed out that a child marriage though prohibited by Child Marriage Restraint act is not rendered invalid by any provision therein and that the contravention of the provisions of that Act does not render the marriage invalid as the validity of the marriage is a subject beyond the scope of the Act. It is also laid down in that decision:
" A marriage under the Hindu law by a minor male is valid even though the marriage was not brought about on his behalf by his natural or lawful guardian. The marriage under the Hindu Law is a sacrament and not a contract. The minority of an individual may operate as a bar to his or her incurring contractual obligations. But it cannot be impediment in the matter of performing a necessary 'samskars'. A minor's marriage without the consent of the guardian can be held to be valid also on the application of the doctrine of factum valet. Consequently the marriage of Hindu minor cannot be held to be invalid for want of proof that his guardian consented to it."
In this connection, Jagadisan , J. relied upon Court in Venkatacharyulu v. Rangacharyulu (12891) ILR 14 Mad 316. In that case, the facts before the Division Bench of the Madras High Court were that a Vaishnava Brahmin girl was given to the plaintiff in marriage by her mother without the
G. Ganapatulu ,. At this juncture it may be pointed out that, under Section 16 of the Hindu Marriage Act, where a decree of nullity is granted in respect of any marriage under Section 11 or Section 12 any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity. It is obvious that this provision regarding legitimacy of children would not apply to children begotten by a couple that was married in contravention of the provisions of clause (iii) of Section 5, because neither Section 11 nor Section 12 provides for any consequence that might result from contravention of clause (iii) of Section 5 and the children would be bastards taking the view that appealed to the Division bench in P.A. Saramma v. G. Ganapatulu.
- If each of the clauses in Section 5 is to be treated as a condition precedent, the violation of which would render the marriage void ab initio the Legislature itself would not have given out its mind by providing for contravention of the different clauses of Section 5 differently. This is a further ground on which we respectfully disagree with the view taken by the learned Judges in P.A. Saramma v. G. Ganapatulu.
- R. Pallamsetti v. D. Sriramulu, , was not directly on the point, but Obul Reddi, J. (As he then was ) in that case, had decided another point of law from which the legal principle in support of the proposition laid down in P. A. Saramma v. G. Ganapatulu was sought to be observed.
- In Panchadi Chitti Venkanna v. Panchadi Mahalakshmi , Transferred Appeal No. 578 of 1973 and T.A. No. 546 of 1972 decided by Kondiah and Lakshmaiah, JJ. on December 23, 1975*. Which arose out of matrimonial litigation, the husband sought to rely upon the decision in P.A. Saramma v. G. Ganapatulu. But the Division Bench consisting of Kondiah and Lakshmaiah ,JJ. distinguished that earlier decision on the ground that , in the case before them, the marriage was solemnized in 1953 prior to the enactment of the Hindu Marriage Act, 1955 and, therefore, the provisions of the Hindu Marriage Act would not apply and it could not be said that there was violation of clause (iii) of Section 5 of the Hindu Marriage Act, when the marriage was performed.
- We find that, barring the view taken by a single Judge of the Punjab and Haryana High Court in Krishni Devi v. Tulsan Devi there is no other reported case taking the same view as the view which appealed to Obul Reddi C.J. and Madhusudan Rao, J. in P.A. Saramma v. Ganapatulu. On the other hand, we find that there are several decisions of other High Courts including the decisions of a Division Bench of the Punjab and Haryana High Court which have taken a contrary view. In Mohinder Kaur v. Major Singh , the Division Bench of the Punjab and Haryana High Court consisting of Pandit and Gopal Singh, JJ. Held that the marriage in contravention of the clause is not a nullity and hence such contravention cannot be pleaded as a ground in answer to a petition for restitution of conjugal rights. The Division Bench further held:
"The question for decision is whether a contravention of S. 5(Iii) of the Act is a ground for judicial separation or for nullity of marriage or for divorce. If it is not so, then it cannot be pleaded in defence by the appellants to a petition for restitution of conjugal rights made by the respondents in this case. The grounds for judicial separation, nullity of marriage and divorce are given in S. 10, 11
and 13 of the Act respectively. The contravention of S. 5(Iii) of the Act does not admittedly find any mention in any of these three sections."
It was also observed that the infringement of clause (iii) of S. 5 did not affect the tie of marriage itself and tender the marriage either void or voidable. The view of a learned single Judge was confirmed by the Division Bench. But it must be pointed out that there is no elaborate discussion beyond what has been pointed out above in the decision of this Division Bench of the Punjab and Haryana High Court.
- In Mt. Kalawati v. Devi Ram , the Judicial Commissioner of Himachal Pradesh held that the minority of the wife or of her guardian in marriage is by itself, not a ground for getting it declared null and void under S. 11 or for its annulment under S. 12 and there it could not be said that the Legislature was oblivious and had inadvertently omitted to provide for the avoidance of marriage on that ground of minority of the bride and her guardian in marriage: that the omission was deliberate and that it is not for the Courts to scan the wisdom of the legislature and speculate on the reasons which led the legislature to make or not to make certain provisions. We find that the learned Judicial Commissioner has carefully gone into the different provisions of the Hindu Marriage Act and come to his own conclusions on these lines.
- In Mst. Premi v. Daya Ram, , which was also decided by the then Judicial Commissioner of Himachal Pradesh, it was held:
"It was not the intention of the legislature that contravention of every and any condition, specified in S. 5 would render a Hindu marriage void. The contravention of only any of the three conditions specified in clauses (i), (iv) and (v) of S. 5 would render a Hindu Marriage null and void. Therefore the marriage of a minor wife is neither void nor voidable, though it contravened the condition, specified in clause (vi) of S. 5 of the Act inasmuch as the consent of her guardian to the marriage was not obtained."
- In Mst. Ma Hari v. Director of Consolidation 1969 All LJ 623. Satish Chandra, J. Sitting singly, held that, though the conduct of solemnizing a marriage in contravention of clause (iii) of S. 5 of the Hindu Marriage Act may result in the punishment of the marrying spouses, yet the marriage would not become null and void with its far reaching and serious consequences and that the marriage would remain valid in law and enforceable and recognizable in a Court of law. The same view was also taken by the Orissa High Court in Budhi Sahu v. Lohurani Sahuni ILR (1970) Cut 1215. S. Acharya, J. Sitting singly held:
"Clause (iii) of S. 5, providing for the age of the bridegroom and the bride is thus specifically excluded from the operation of the provisions of S. 11 of the Act. The conditions rendering a Hindu marriage null and void mentioned in S. 11 of the Act are exhaustive, and it is only on those grounds a Court can declare by a decree of nullity that a marriage solemnised after the commencement of the Act is null and void. Therefore, a marriage between a bridegroom, who has not completed the age of eighteen years and a bride who has not completed the age of fifteen years at the time of the marriage, coming within the provisions of clause (iii) of S. 5, and/or a marriage in which the
(Amendment) Act, 1976.
- For these reasons we hold that the decision of the Division Bench of this High Court in P. A. Saramma v. G. Ganapatulu (supra), does not lay down the correct law and it must be held that any marriage solemnized in contravention of clause (iii) of S. 5 is neither void nor voidable, the only consequence being that the persons concerned are liable for punishment under S. 18 and further if the requirements of clause (iv) of sub-section (2) of S. 13, as inserted by the Marriage Laws (Amendment) Act, 1976 are satisfied, at the instance of the bride, a decree for divorce can be granted. Barring these two consequences, one arising under S. 18 and the other arising under clause (iv) of sub-s. (2) of S. 13, after the enactment of the Marriage Laws (Amendment) Act, 1976, there is no other consequence whatsoever resulting from the contravention of the provisions of clause (iii) of S. 5.
Under these circumstances so far as Criminal Revision Case No. 190/75 is concerned, the matter will now go before a single Judge for decision according to law as explained by us. So far as Criminal Miscellaneous Petition No. 809/76 is concerned, the only ground on which the order of the Judicial First Class Magistrate, Siddipet, is sought to be quashed is that the marriage between the parties was void, since the marriage was solemnized in 1959 when the bridegroom was 13 years of age and the bride was 9 years of age and relying upon the decision in P. A. Saramma v. G. Ganapatulu (supra) it was sought to be argued that the complaint filed by the wife alleging that the husband had committed an offence punishable under S. 494 I. P. C. And that the other accused had committed an offence punishable under S. 494, read with S. 109, I. P. C. Must be quashed. This relief cannot be granted in the view we have taken. Criminal Miscellaneous petition No. 809/76 is therefore, dismissed. Ordered accordingly.
- Ordered accordingly.
