1. This is a defendants' appeal and arises out of a suit brought against them and other defendants respondents by the plaintiff for a declaration that Mt. Ram Kuari, defendant 2, was his wife and that her subsequent marriage with defendant 5 was invalid. The defendants contended that Mt. Ram Kuari was never married to the plaintiff. Both the lower Courts have concurrently found that she was legally married to the plaintiff and her marriage is valid. It has been contended by learned Counsel on behalf of the defendants that in view of the provisions of the Child Marriage Restraint Act (Act 19 of 1929), such a declaration should not have been granted by the lower Courts. He has relied on two cases, Horamasji Motabhai v. Pestanji Dhanjibhai (1888) 12 Bom. 422 and Keshav Hargovan v. Bai Gandi (1915) 2 A.I.R. Bom. 107. These cases do not apply to the present case. The first case deals with a contract which was itself void being prohibited by law. The second case deals with an immoral custom.
2. A distinction must be observed between the performance of the act and the act itself. The Child Marriage Restraint Act aims at the restraint of the solemnization of child marriages. It does not affect the validity of the marriages after they have been performed. There may be cases where the Court in the exercise of its discretion may refuse to give a declaration in the case of a marriage which has been solemnized or performed in contravention of the provisions of the Act. But in the present case it is very essential to give the declaration sough for by the plaintiff. The father of the girl (defendant 2) after having married her to the plaintiff intended to marry her again to defendant 3. During the pendency of the suit he actually married her to defendant 5. Unless the validity of the first marriage between the plaintiff and defendant 2 is declared, the second marriage of defendant 2 with defendant 5 will load to a number of complications and also to the commission of various offences. In order to avoid the commission of various further offences it was necessary that the declaration sought for should have been granted by the lower Courts. As already stated, the lower Courts have concurrently found that defendant 2 was validly married to the plaintiff and their marriage is legally valid. This finding is one of fact and is conclusive. There is no force in the appeal. It is therefore ordered that it be dismissed with costs.