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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.
"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.
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.
'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.
"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.
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.
" 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.
"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.
"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."
"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.
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.