1. The revision proceeding involves an Interesting point, with regard to the applicability of See. 5 of the Child Marriage Restraint Act. XTK of 1929, to the facts of the case. Section 5 runs as follows:
Whoever performs, conducts or directs any child marriage shall be punishable...unless he proves that he had reason to believe that the marriage was not a child marriage.
The 4th revision petitioner was the 5th accused in a prosecution under the Act, and the propriety of the convictions of the other accused in the case is now before me.
2. Admittedly, the 4th revision petitioner, a member of the Panchayat Board of the locality, attended this marriage, which was a child marriage. She does not claim that she had reason to believe that the marriage was not a child marriage; and, hence, the proviso to Section 5 is not relevant to the present facts. The problem is, whether a person who attends a child marriage, as a guest, and participates in some limited manner in the marriage, can be conceivably said to perform, conduct or direct the marriage within the mischief of Section 5 of the Act.
3. In the present case, there arc only two overt acts ascribed to the fourth revision petitioner, as far as the actual marriage is concerned, apart from the indisputable fact that she attended the marriage. The first is that, at a certain stage, she brought the bride to where the bridegroom was sitting, thereby enabling the further ceremony of the marriage being gone through. The second is that, after the thali was tied, she asked the women assembled to perform kulavai. As is clear from the commentary in Vol. II, part I, of the Tamil Lexicon Kulavai really denotes a chorus of shrill sounds made by assembled women on festive occasions. Apparently, it is local custom, invariably characterising marriages in that class of society.
4. The only decided case, upon this aspect, would appear to be the judgment of a Division Bench of the Bombay High Court in Emperor v. Fulabhai Joshi : AIR1940Bom363 , The learned Judges were concerned with the interpretation of Sections 5 and 6 of the Child Marriage Restraint Act, and they pointed out that a mere participation in the kanyadhanam ceremony of marriage of a Hindu does not constitute 'performing, conducting or directing' a child marriage within the ambit of Section 5. Wassoodew J. observed at page 712 as follows:
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 solemnisation of the marriage... They do not suggest the arranging of marriage merely or attending a marriage ceremony with a view to assisting in the solemnisation of the marriage.
With respect, I find myself in agreement with these dicta. I think it is clear that the 4th revision petitioner was a guest at the marriage. She was not performing, conducting or directing the marriage in any conceivable sense. As a guest interested in the completion of the ceremony, she seems to have escorted the bride to the actual spot, where the marriage was to be performed. Equally, after the tali was tied, she reminded the women present, that the customary chorus raised on festive occasions, should be appropriately raised at that Juncture. That does not imply that she was the conducting or directive force in the actual marriage, or that she was in charge of its solemnisation. In my opinion she is clearly entitled to an acquittal, and the conviction is incorrect and must be set aside. Accordingly It is set aside and the revision petitioner is acquitted. The fine, if paid, will be refunded.