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Emperor Vs. Fulabhai Bhulabhai Joshi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 78 of 1940
Judge
Reported inAIR1940Bom363; (1940)42BOMLR857
AppellantEmperor
RespondentFulabhai Bhulabhai Joshi
DispositionAppeal dismissed
Excerpt:
child marriage restraint act (xix of 1929), section 5-'promotes, conducts or directs any child marriage ':-interpretation of-marginal mate to a section -hindu marriage-performance of kanyadan ceremony by parents of grown-up girl-liability of parents.; the words 'performs, conducts or directs' in section 5 of the child marriage restraint act, 1929, bear the same import and mean working towards the end, that is completing the union; and are used by the legislature to indicate the solemnization of the marriage. they do not suggest the arranging of marriage merely or attending a marriage ceremony with a view to assisting in the solemnization of the marriage. they are used in relation to the ceremony of marriage.; the performance of marriage means the solemnization thereof by conducting such..........and two others were tried under the child marriage restraint act (xix of 1929) for performing a child marriage. the opponents were the parents of the bride who was above the; prohibited age. she was married on may 2, 1938, to a husband who was below that age. the latter's father was accused no. 1 and the priest who officiated was accused no. 4 at the trial. accused no. 1 alone was charged with the offence under section 6 as a parent who had permitted the child marriage to be solemnized, and the remaining accused including the opponents were charged under section 5. the learned magistrate convicted accused no. 1 under section 6 and the rest under section 5 of the act. in, his opinion the opponents, although they are not the parents of the bridegroom, who is a ' child' within the.....
Judgment:

Wassoodew, J.

1. This is an appeal by the Government of Bombay from the order of acquittal, passed by the Sessions Judge of Nadiad in appeal, in a case in which the opponents and two others were tried under the Child Marriage Restraint Act (XIX of 1929) for performing a child marriage. The opponents were the parents of the bride who was above the; prohibited age. She was married on May 2, 1938, to a husband who was below that age. The latter's father was accused No. 1 and the priest who officiated was accused No. 4 at the trial. Accused No. 1 alone was charged with the offence under Section 6 as a parent who had permitted the child marriage to be solemnized, and the remaining accused including the opponents were charged under Section 5. The learned Magistrate convicted accused No. 1 under Section 6 and the rest under Section 5 of the Act. In, his opinion the opponents, although they are not the parents of the bridegroom, who is a ' child' within the meaning of the Act, were present and had taken part in certain ceremonies such as ' Kanyadan' or the gift of the bride at the time of the ceremony, and were therefore liable. There is no suggestion that they performed any ceremony. The learned Sessions Judge took a contrary view because, in his opinion, Section 5 contemplated punishment of those who solemnized a child marriage, such as a priest or a Kazi or a Vakil, and did not apply to the parents of the parties to the marriage, and that Section 6 only applied to the parents of a child.

2. The question before us is whether the opponents by permitting their daughter to be married to a child and giving her away have committed the offence under Section 5 of the Child Marriage Restraint Act. There is no question arising about the legality of the conviction of accused Nos. 1 and 4. Section 5 says:-

Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment... unless he proves that he had reason to believe that the marriage was not a child marriage.

3. Apart from authority upon the plain provisions of the Section, the question is largely one of fact whether the opponents ' performed, conducted or directed a child marriage'. 'Child marriage' is defined in Section 2(b) as meaning a marriage to Which either of the contracting parties is a child, that is, either of the parties whose marriage is solemnized. ' Child ' under the Act means a person who, if a male, is under eighteen years of age, and if a female, is under fourteen years of age. It is common ground that the bridegroom alone is a child while the bride is not. Opponent No. 1, the bride's father, had, as I have already stated, taken part in the ' Kanyadan' ceremony. The -Magistrate notwithstanding the denial of the mother has held that she too f participated in the said ceremony. The question is whether such participation constitutes ' performing, conducting or directing' a child marriage within Section 5. To my mind the words ' perform, conduct or direct' in the Section bear the same import and mean working towards the end, that is completing the union; and are used by the Legislature to indicate the solemnization of the marriage. That in my opinion is the ordinary interpretation of those words.. They do not suggest the arranging of marriage merely or attending a marriage ceremony with a view to assisting in the solemnization of the marriage. Even if the words are capable of diverse constructions, that is not a construction which is recommended by and derived from the policy of the law. From the heading or the marginal note of the Section, it would appear that the Section is intended to punish ' the solemnizing a child marriage'. It is true that a marginal note cannot be looked at for interpreting the provisions of a Section. But where, as here, a possibility of ambiguity may arise by the use of the words ' perform, conduct or direct', I think the marginal note could be used to clear it.

4. Ordinarily among Hindus-the parties here are Gujarathi Brahmins-a marriage is solemnized by a priest and never by parents. The words ' perform, conduct or direct' are used in relation to the ceremony. According to Hindu Shastras, a marriage ceremony consists of two parts, the spiritual, which according to the orthodox rites is the essential part, and the secular, the immaterial part. It has been repeatedly pointed out that a marriage according to Hindu law is a sacrament, and that the sacramental or religious ceremonies consist of the saptapadi and the ' Vivah Hom' where the parties take the marriage vow which is essential for solemnizing or completing irrevocably the marriage. It is true that when the Shastric ceremonies are superseded by custom, a marriage union takes place without them. But in the absence of proof of custom, when a priest is employed to perform the religious ceremonies, they alone must be regarded as essential and binding to complete the marriage. It is suggested that the parents by gifting the bride have assisted in the performance of the marriage, if they have not performed the marriage, and that therefore they are guilty. That could also be said of the contracting parties and the guests. That view, I think, is not well founded. The performance of marriage means the solemnization thereof by conducting such ceremonies as would complete and validate the marriage. That implies the performance of the sacramental or religious and not the secular ceremony. The mere participation in the latter ceremony would not, in my opinion, offend against the provisions of Section 5. That view was accepted in Ganpatrao v. Emperor (1932) 34 Cr. L.J. 311, and in Public Prosecutor v. Rattayya [1937] Mad. 854. In the latter case Pandrang Row J. thought that that view was supported by the proviso to Section 6 of the Act which expressly excludes from punishment any female parent or guardian promoting or negligently failing to prevent a child marriage, and that, in the absence of such a proviso to Section 5, that Section could not have been meant to apply to parents. That is one way of ascertaining: the intention of the Legislature. The Legislature apparently intended that only the male contracting party to the marriage, who is not a child within the meaning of the Act, could be punished under Section 3 or Section 4 according to his age for contracting a child marriage. If the interpretation sought to be put by the' learned Government Pleader on Section 5 were accepted, the bridegroom as well as the bride, irrespective of their ages, would also1 be liable for punishment under Section 5 for performing or taking part in their own marriage. Having regard to the scheme of the enactment, the offences which are intended to be punished are those committed by the male contracting party, if he is of the age prescribed, under Section s 3 and 4, the persons performing or conducting the marriage under Section 5, and the parents or guardians, who promote such marriage or are negligent in preventing the performance, under Section 6. I do not think that Section 5 is intended to punish parents who arrange or assist in the performance of the marriage ceremony. If the Legislature intended to punish such acts, it would have used clear and definite language such as that contained in Section 6(1) which punishes persons arranging or bringing about such a marriage. There it is stated that ' a parent or guardian who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable ' etc. That being so, I think with respect that the contrary view which prevailed in the Allahabad High Court (see Munshi Ram v. Emperor [1936] A.I.R. All 11 is not in consonance with the spirit of the enactment.

5. I would, therefore, confirm the order of the learned Sessions Judge and dismiss this appeal.

John Beaumont, Kt., C.J.

6. I agree.


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