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Parisa Raghavulu and anr. Vs. Borra Kotayya - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1956CriLJ196
AppellantParisa Raghavulu and anr.
RespondentBorra Kotayya
Excerpt:
.....it shall be presumed, unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnised. so, when a child marriage takes place or when two minors enter into a child marriage, the parents or guardians who did any act to promote the marriage or permitted the marriage to be solemnised or negligently failed to prevent it from being solemnised are liable to be punished under section 6. clause (2) of section 6 raises a presumption that where a minor has contracted a child marriage, the person having charge of such a minor has negligently failed to prevent the marriage from being solemnised. ramasami thathan' air 1924 mad 15 (fb) (f) clearly lays down that the..........aged about 12 and that the parents were consequently liable to be punished under sections 5 and 6, child marriage restraint act (19 of 1929).there is no doubt that the marriage is a child marriage within the definition of the act. it was contended on behalf of the accused that no marriage was performed but, on the evidence, the first class magistrate found that the marriage took place and no sufficient grounds are made out that the finding of fact arrived at by the magistrate is erroneous.p. w. 7 deposes that an old brahmin officiated as priest and that six dhobies including p w. 7 came to carry the palanquin. i therefore confirm the finding that a child marriage took place.2. the main contention urged by sri g. v. raghavayya on behalf of the petitioner is that the terms of section 6.....
Judgment:
ORDER

Umamaheswaram, J.

1. This criminal revision petition is filed by the two accused against the judgment of the Additional First Class Magistrate, Tenali, in C. C. No. 169 of 1954 convicting and sentencing them each to pay a fine of Rs. 100/- with two months' rigorous imprisonment each in default. The complaint is that the marriage of accused l's son was performed with accused 2's daughter, that the bridegroom was aged about 16 while the bridge was aged about 12 and that the parents were consequently liable to be punished under Sections 5 and 6, Child Marriage Restraint Act (19 of 1929).

There is no doubt that the marriage is a child marriage within the definition of the Act. It was contended on behalf of the accused that no marriage was performed but, on the evidence, the First Class Magistrate found that the marriage took place and no sufficient grounds are made out that the finding of fact arrived at by the Magistrate is erroneous.

P. W. 7 deposes that an old Brahmin officiated as priest and that six dhobies including P W. 7 came to carry the palanquin. I therefore confirm the finding that a child marriage took place.

2. The main contention urged by Sri G. V. Raghavayya on behalf of the petitioner is that the terms of Section 6 were not complied with and that it was not proved that the minors contracted a child marriage. Section 6 runs in the following terms:

(1) Where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act' to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both:

Provided that no woman shall be punishable with imprisonment. (2) For the purpose of this section, it shall be presumed, unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnised.

Section 2(a) defines a child as meaning a person who, if a male, is under eighteen years of age, and if a female, is under fourteen years of age Child marriage means a marriage to which either of the contracting parties is a child. Minor means a person of either sex who is under eighteen years of age.

The contention of Sri Raghavayya is that the prosecution has not proved that the two minors entered into a contract to get married and that consequently their parents are not liable to be punished under Section 6 of the Act. I do not agree with this contention. The expression 'contracts' only means enters into.

So, when a child marriage takes place or when two minors enter into a child marriage, the parents or guardians who did any act to promote the marriage or permitted the marriage to be solemnised or negligently failed to prevent it from being solemnised are liable to be punished under Section 6.

Clause (2) of Section 6 raises a presumption that where a minor has contracted a child marriage, the person having charge of such a minor has negligently failed to prevent the marriage from being solemnised. The minors are incapable of entering into any valid contract and marriage lunder Hindu Law is no contract.

So the words 'where a minor contracts a child marriage' ought not to be literally interpreted but ought to be understood as meaning 'where a child marriage takes place or where a minor enters into a child marriage.'

3. Reliance was placed by the petitioner's advocate on the decision in - 'Munshi Ram v. Emperor' AIR 1936 All 11 (A) and it is true that the decision supports his contention. For the reasons already stated, I do not agree with that decision. In - 'Bhagwat Sarup v. Emperor' AIR 1945 All 306 (B), Bennett J., dissented from the view taken by Ganga Nath J, in AIR 1936 All 11 (A) and held as follows:

Learned Counsel for the applicants referred to a decision of a learned Single Judge of this Court in AIR 1936 All 11 (A) and founded thereon a contention with regard to the first words of Section 6, namely 'where a minor contracts a child marriage.' The suggestion, I understand, was that the section applied only to cases where the child himself or herself entered into an agreement for the marriage, but I do not construe the words in this sense.

I accept the construction of Bennett J. on the terms of Section 6 in preference to the construction placed by Ganga Nath J. I therefore hold that the parents are guilty and are liable to be punished under the terms of Section 6.

4. In the view taken by me it is unnecessary to decide whether the terms of Section 5 are wide enough to include parents as laid down in AIR 1936 All 11 (A). I may however point out that the Allahabad decision was dissented from by Pandurang Row J. in - 'Public Prosecutor v. Thammanna Rattayya' AIR 1937 Mad 490 (C) who held that the liability of parents arises only under Section 6 and not under Section 5. A similar view was taken by the Nagpur High Court in - 'Ganpat-rao v. Emperor' AIR 1932 Nag 174 (D) and by the Bombay High Court in - 'Emperor v. Fulabhai Bhulabhai' AIR 1940 Bom 363 (E).

5. It was further contended that the judgment was vitiated as the Magistrate did not follow the procedure laid down under Sections 242 and 342, Cr. P.C. There is no force in this contention. When the accused appeared before the Magistrate, the particulars of the offence appear to have been stated to them and they denied the offence and contended that the complainant was inimical to them.

The Full Bench decision in - 'Ponnusamy Odayar v. Ramasami Thathan' AIR 1924 Mad 15 (FB) (F) clearly lays down that the mandatory provisions of Section 342, Cri. P.C. which require the Court to question the accused generally on the case after the examination of the prosecution witnesses, do not apply to trials in summons cases. So the petitioners cannot complain that the procedure laid down in Section 342, Cr. P.C. was not followed.

6. The next contention of the petitioners' advocate was that the case ought not to have been tried summarily under Section 260, Cr P.C. This contention is also untenable. Bennett J. held, in - 'Jwala Prasad v. Emperor' AIR 1934 All 331 (G) that a trial under Child Marriage Act may be summary. I follow that decision. Mr. Raghavayya contended that even if it was open to the Magistrate to proceed under Section 260, having regard to the complicated questions of fact and law that arise in this case, the Magistrate ought not to have proceeded to try the case in a summary way.

I do not agree. The Magistrate who tried the case recorded the depositions in extenso and arrived at the conclusion that the plea put forward by the accused that the marriage did not take place was false. I therefore confirm the conviction and sentence passed by the Magistrate and dismiss the petition:

7. Before concluding my Judgment I only wish to point out that the Magistrate who discussed the evidence carefully did not give any reasons how the parents were guilty under Section 6 of the Act. He ought to have referred to the provisions of the Act and discussed how the terms of Section 6 were complied with and how the presumption raised by Sub-section (2) was not displaced by the accused. Even in summary trials, it is the duty of the magistrates to give cogent reasons to support their legal conclusions. The single sentence in his judgment summing up his legal conclusion.

I hold that the prosecution proved its case against A-1 and A-2 beyond the shadow of doubt under Section 6(1) of the Act does not satisfy the requirements of law. At one stage of the hearing I was inclined to remand the case to the trial Magistrate for the purpose of recording a proper finding as to how the accused were liable under Section 6 of the Act. But after hearing full arguments of the petitioners' advocate and the Public Prosecutor I felt it would be a sheer waste of time to remand the matter.


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