1. This suit is one for nullity under the Special Marriage Act III of 1872 as amended. The petitioner was born on the 28th of January 1929, and is therefore today under 20 years of age. Her father died in 1938 and since then she has lived with her mother and latterly with her mother in her maternal uncle's house. In 1947-48 she was attending school in Coimbatore and through one of her school mates met the respondent, a young man now aged about 22. On the 24th of March, 1948, the parties appeared before the Registrar and went through a form of marriage purporting to be in accordance with this Act. At that time the petitioner was just over 19 years of age and the respondent about 21.
2. The question is whether the form of marriage was correct under the provisions of the Act. It is necessary to refer to one or two sections. The first is Section 2 which lays down the conditions upon which marriages under the Act may be celebrated. The parties are Hindus and at the time of the marriage, the petitioner being under the age of 21, it was necessary that the consent of her father or guardian should have been obtained. Section 2, Sub-section (3). It is presumed that due notice was given to the Registrar under Section 4. Section 10 provides as follows:
Before the marriage is solemnized, the parties and three witnesses shall, in the presence of the Registrar, sign a declaration in the form contained in the second schedule to this Act. If either party has not completed the age of 21 years, the declaration shall also be signed, by his or her father or guardian, except in the case of a widow, and, in any case, it shall be counter-signed by the Registrar.
Pausing here it may be observed that the requirements of this section were admittedly not fulfilled. There was no declaration made as required in the form in the second schedule. Despite the statement of the Registrar in the so-called certificate that the declarations required by the Act had been made, they had not been made, and I consider it a grave dereliction of duty on the part of the Registrar that the requirements of Section 10 were not complied with.
3. Section 17 provides that the Indian Divorce Act shall apply to marriages solemnized under the Special Marriage Act and that any marriage contracted under this Act may be declared null in the manner provided by the Indian Divorce Act.
4. It is admitted that the form prescribed by the Special Marriage Act has not been followed, and the question is whether the marriage is therefore valid or not. Mr. J. Vedamanickam who appears for the respondent has contended strongly and, if I may say so, very ably that the mere absence of the required declaration or even the lack of consent of the father or guardian does not make a marriage between minors invalid and that so to hold would affect the sanctity of the sacrament of marriage. He has cited Ganeshprasad v. Damayanli I.L.R. (1946) Nag. 1 where Bench of three Judges held that the minority of one or other of the parties to a marriage under Special Marriage Act does not in itself invalidate the marriage, and that Section 2 of the Special Marriage Act does not lay down the conditions of validity but merely prescribes the forms which must be filled in to enable the Registrar to marry the parties. That was a case in which a young man became involved with a woman of bad character but himself was not free from blame and on the special facts of that case they refused to intervene although no consent of the guardian had been obtained. With the greatest respect I am unable to follow or agree with the reasoning of the long judgments which appear in the case and which are mainly devoted to an analysis of English cases which in their turn, in the main, relate to cases where minors have appeared before a Registrar and have made false declarations about their age, a case which not infrequently happens. The English Courts have always held that where a false declaration is made the parties are not entitled to go behind it afterwards when they have begun to repent at leisure of their marriage in haste.
5. In this case, however, a different situation arises. The form or what might be called the ritual prescribed for the marriage has not been carried out. Even the certificate appears to be improper and there is clearly no declaration as is required. In Basana Sen v. Aghore Nath Sen I.L.R. (1928) Cal. 628 a Full Bench held that in a case where a girl did not have the consent of her father and therefore the express terms of Section 17 of the Special Marriage Act had not been carried out it was proper to pronounce that the marriage was null and void. With respect I prefer to follow that case rather than the Nagpur case. It seems to me that to hold otherwise would completely destroy the purpose of Section 2 and Section 17. If they are to be disregarded then no female minor would be free from danger and the same observation no doubt would apply in some cases to a male minor, but at any rate, the rights of the parents or guardians would be completely destroyed. The law is intended in my view to provide that the rights of parents and guardians should be maintained. They are in charge of their children and no one else must be allowed to interfere unless the legal requirements which aim at the protection of society are fulfilled.
6. I have decided this case on the law as applied, in my opinion, to the admitted facts and I have suggested to counsel who appears for the respondent that it was unnecessary for him in the circumstances to cross-examine the petitioner as he desired to do no doubt as to her willingness to enter into this form of marriage and also no doubt as to the relationship between the parties before and at the time of the marriage. I have no doubt that she went quite willingly to the Registrar's Office and quite willingly signed the form which was put before her. I know nothing about the background of the case but since it is admitted that the proper form was not used and that the consent of the girl's mother or relations was not obtained, in my opinion, there was no marriage in accordance with the Special Marriage Act, and I must therefore pronounce that the so-called marriage is invalid. There will be a decree nisi in the first instance declaring the marriage null and void. With regard to the question of costs, with some hesitation, I order that the respondent shall pay the petitioner's costs. After all he must have given the notice required under Section 4 and it was his duty as the prospective bridegroom to see that the proper form was carried out. To that extent therefore he is responsible for the present position.