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Lala Gokuldas and anr. Vs. John Kantaraj - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1937Mad895; (1937)2MLJ590
AppellantLala Gokuldas and anr.
RespondentJohn Kantaraj
Excerpt:
- .....or christians shall be solemnised in accordance with the provisions of section 5; and any such marriage solemnized otherwise than in accordance with such provisions shall be void. section 5 states that marriages may be solemnized inter alia by a marriage registrar appointed under the act. the marriage in question having been solemnized before a marriage registrar, it is necessary to turn to part v of the act, which commences with section 38. this section states that when a marriage is intended to be solemnized by, or in the presence of, a marriage registrar, one of the parties to such marriage shall give notice in writing in the prescribed form to a marriage registrar of the district within which the parties have dwelt; or, if the parties dwell in different districts, they shall give.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The appellants, who are father and Leach, CJ. daughter, were the plaintiffs in the Court below. They sued for a declaration that the marriage of the second appellant to the respondent solemnized before the Registrar of Marriages at St. Thomas Mount on the 17th July, 1934, is a nullity. The parties are all Indian Christians. At the time of the marriage the second appellant was 18j years of age, and was a student at the Women's Christian College, Madras. Both she artd the respondent who had attained his majority at the time were resident in Madras. The respondent gave notice of the marriage to the Registrar at St. Thomas Mount and falsely declared before him that the second appellant was of age. There being no impediment to the marriage it was duly solemnized on the date mentioned. The learned Judge declared for the validity of the marriage. The appellants challenge this decision on the ground that it conflicts with the express provisions of the Indian Christian Marriage Act of 1872. It is therefore necessary to examine the relevant sections of that statute.

2. Section 4 provides that every marriage between persons, one or both of whom is or are a Christian or Christians shall be solemnised in accordance with the provisions of Section 5; and any such marriage solemnized otherwise than in accordance with such provisions shall be void. Section 5 states that marriages may be solemnized inter alia by a Marriage Registrar appointed under the Act. The marriage in question having been solemnized before a Marriage Registrar, it is necessary to turn to Part V of the Act, which commences with Section 38. This section states that when a marriage is intended to be solemnized by, or in the presence of, a Marriage Registrar, one of the parties to such marriage shall give notice in writing in the prescribed form to a Marriage Registrar of the District within which the parties have dwelt; or, if the parties dwell in different districts, they shall give notice to the Registrar of each district, and shall state therein the name and surname, and the profession or condition of each of the parties intending marriage, the dwelling place of each of them, the time during which each has dwelt therein, and the place at which the marriage is to be solemnized. The notice given by the respondent in this case stated that both the parties resided at St. Thomas Mount and was, therefore, deliberately false. On receipt of notice, the Registrar shall, under Section 39, publish it, and under Section 40 enter it in the Marriage Notice Book. Section 41 provides that if the party by whom the notice was given requests the Marriage Registrar to issue the certificate mentioned in the section and if one of the parties intending marriage has made oath as required, the Marriage Registrar shall under his own hand issue a certificate of such notice having been given and of such oath having been made. There are several provisos to this section but it is only necessary to refer to the last of them which says that if one of the parties is a minor the certificate shall not be issued until fourteen days after the entry of the notice have expired. Turning now to Section 42 we find that the certificate shall not be issued by a Marriage Registrar until one of the parties intending marriage appears personally before him, and makes oath--

a) that he or she believes that there is not any impediment of kindred or affinity, or other lawful hindrance, to the said marriage, and

(b) that both the parties have, or (where they have dwelt in the dis tricts of different Marriage Registrars) that the party making such oath has, had their, his or her usual place of abode, within the district of such Marriage Registrar.

and, where either or each of the parties is a minor,--

(c) that the consent or consents to such marriage required by law has or have been obtained thereto, or that there is no person resident in India authorized to give such consent, as the case may be.

3. Section 19 of the Act requires in the case of a minor's marriage, the consent of the father, if living, or if the father be dead, the guardian of the person of such minor, and, in case there is no such guardian, then the mother of the minor. This is made applicable to marriages under Part V of the Act by Section 44. The respondent took the oath required by Section 42 and made two false declarations in the course of his statement (t) that the second appellant was of age, and (n'), that the parties lived within the district. By Section 51, after the issue of the certificate of the Marriage Registrar, the marriage may if there be no lawful impediment to the marriage of the parties described in the certificate be solemnized between them, according to such form and ceremony as they think fit to adopt. Now, in this case, as the result of the false declaration which the respondent made, he obtained a certificate which entitled him and the second appellant to be married, there being in it no statement showing any lawful impediment to the marriage. The last section we need refer to is Section 77 which states that whenever any marriage is solemnized in accordance with the provisions of Sections 4 and 5, it shall not be void merely on account of any irregularity in respect inter alia of the following matters:

(i) any statement made in regard to the dwelling of the persons married, or to the consent of any person whose consent to such marriage is required by law;

(ii) the notice of the marriage.

4. It is not disputed that the marriage was solemnized by the Registrar on the 17th July, 1934. But it is said that the solemnization was invalid because of the false declaration which the respondent made. This argument, however, ignores the provisions of Sections 4 and 5 and would read into part V provisions which are not there. The Registrar who solemnized this marriage was authorised by law to solemnize it, and having been solemnized by an official authorised in this respect it cannot be declared to be void under Section 4. As I have pointed out there was no lawful impediment shown in the certificate of notice issued by the Registrar and therefore there was nothing to prevent the Registrar solemnizing the marriage. The respondent of course induced the Marriage Registrar to solemnize this marriage as the result of a false declaration and he has rendered himself liable to severe punishment under Section 66 of the Act, but that is a quite different thing from saying that under the provisions of the Act this marriage is not lawful. There is no provision in the Act which renders this marriage1 illegal by reason of the false declaration of the respondent. The law is the same in England, and the Indian Christian Marriage Act of 1872 follows English legislation of a similar nature. The parties were in a position to contract a lawful marriage and such a marriage was solemnised by the Registrar in accordance with the provisions of the Act.

5. For these reasons we think that the decision of the learned trial Judge was correct and the appeal will accordingly be dismissed with costs.


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