C.P. Sen, J.
1. The appellant-husband has preferred this appeal under Section 28 of the Hindu Marriage Act, 1955 against the dismissal of his petition for restitution of conjugal rights.
2. The appellant's case is that 3 years before filing of the petition he was married to the respondent according to Hindu rites. One year after the marriage there was Gona and thereafter the respondent stayed with him for 2 nights and has not returned back again. The appellant made 12/13 attempts to bring her back but she was avoiding on one pretext or another. The respondent has withdrawn from his society without any reasonable cause or excuse. The respondent in her written statement resisted the petition and denied the allegations made therein. According to her, they were married 9/10 years before when the respondent was only 10 to 11 years old. At that time, she stayed with the appellant in his house for 2 days and then returned to her parents' place. Three years thereafter there was Gona and she went and lived with the appellant for 4/5 days. Thereafter, she lived in the house of the appellant for 4/5 times staying for 10 to 15 days at a time, But her father-in-law i.e. the father of the appellant, had an evil eye over her and he attempted to take liberties with her. When she complained to the appellant about the behaviour of her father-in-law, the appellant started ill-treating her. He also used to beat her. This he was doing at the instance of his father. She was also not provided with proper food and clothes. As such, she had reasonable apprehension that it would not be safe for her to stay with the appellant any longer and, therefore, she has withdrawn from his company. The learned Additional District Judge accepted the evidence led by the appellant and came to the conclusion that the respondent has withdrawn from his society without any reasonable cause or excuse. The trial Judge disbelieved the respondent about the allegations made by her against her father-in-law and also disbelieved her story about ill-treatment and beatings. In spite of these findings, the trial Judge dismissed the petition on the ground that since the respondent was only 10 to 12 years when she was married, no decree for restitution of conjugal rights could be granted, by relying on a decision of this Court in Ghesalal v. Tulsibai, 1977 Jab LJ (SN) 52.
3. After hearing the parties, we are of the opinion that this appeal has to be allowed and the decree of the trial Court cannot be sustained. Nothing has been shown to us to take contrary view of the finding reached by the trial Judge that the respondent has withdrawn from the society of the appellant without reasonable cause or excuse. This Court in Ghesalal v. Tulsibai (supra) refused to grant relief of restitution of conjugal rights on the ground that at the time of the marriage the husband was 7 years and wife was 4 years old and granting of relief would result in giving judicial recognition to the child marriages which are intended to be prohibited by the Legislature. In that case it was held that the marriage was solemnized in contravention of the provisions of Section 5(iii) of the Act and the wife being a child, it could not be held that she had withdrawn from the society of the petitioner without any reasonable cause. Full Judgment of this case is not available here but the Division Bench relied on earlier decision of this Court in Gindan v. Barelal, 1976 Jab LJ 97 in which another Division Bench has held as under:--
'A marriage solemnized in contravention of the age mentioned in Clause (iii) of 3. 5 of the Hindu Marriage Act can neither be declared ab initio void nor voidable. The consequences, if any, which flow from that contravention are given in Section 18 and that is that a person who procures a marriage of himself or herself in such contravention shall be punishable with imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both.'
As per this decision, such a marriage in contravention of Section 5(iii) of the Act, can neither be declared ab initio void nor voidable. A person contravening is liable to be punished under Section 18 of the Act. Here from the pleadings and evidence of the respondent, it appears that after she became major she has been coming and living with the appellant, thereby showing that she has validated the marriage and condoned the defect, if there was any. Therefore, the trial Judge was not justified in refusing to grant a decree for restitution of conjugal rights.
4. The appeal is allowed, the judgment and decree of the trial Court are set aside and instead a decree for restitution of conjugal rights is passed in favour of the appellant. In the circumstances of the case, there shall be no order as to costs.