(1) In O. S. No. 66 of 1956, on the file of the Court of the principal Subordinate Judge of Nagarcoil one Bhagavathyamma sued her husband Sivanandy for restitution of conjugal rights. The parties belong to Velar community governed, by the Mitakshara school of Hindu law. The plaintiff alleged that she was married to the defendant on 13th panguni 1119 M. E according to Hindu shastraic rights. The plaintiff was a mere girl 13 years old at the time of the alleged marriage. She had not attained puberty at that time. The defendant was also a minor on the alleged date of marriage aged, about 15 years or 16 years According to the plaintiff after she attained the age the marriage was consummated and a nuptial ceremony was performed, and that she was living with the defendant in his house for about a month or so. It is alleged by the plaintiff that the, defendant was not prepared to live with her and that therefore she had to live away from him in her present's house.
(2) The defendant resisted the suit and contended that there was no valid marriage between him and the plaintiff though, he was made to undergo a form of marriage without the proper consent of his father or offer elder members of his family. He denied that the marriage was ever consummated and also pleaded that the plaintiff led an unchaste life by living with one Paradesi Velar. The simple issue between the parties was whether the, were lawfully married and whether the plaintiff had a cause of action to sue for restitution of conjugal rights.
(3) The learned Subordinate judge, of Nagarcoil found that the plaintiff was the law-fully wedded wife of the defendant, and that the plaintiff was entitled to sue for restitution of conjugal rights as the defendant had unlawfully and without reason failed to fulfil his marital obligation and accordingly granted a decree is favour of the plaintiff. This appeal is preferred by the defendant-husband against the said decree and judgment.
(4 to 7) There is ample proof in support of the plaintiff's case of marriage with the defendant, (After discussing the evidence on point His Lordship proceeded). I have no hesitation in concurring with the finding of the learned 'Subordinate Judge that there was a marriage between the plaintiff and the defendant as alleged by the plaintiff.
(8) It was next contended on behalf of the appellant that the marriage even if true was not valid in law as it was in violation of the provisions of the Child Marriage Restraint Act. Having regard to the respective ages of the plaintiff and the, defendant at the time of the alleged marriage it seems that their. Marriage was one which came within the ambit of the Act. But a, child marriage though prohibited by that Act is not rendered. Invalid by any provision therein. It has been held by the Allahabad High Court in Munshiram v. Emperor : AIR1936All11 that a contravention of the provision of the Child Marriage Restraint Act does not render the marriage invalid as the validity of the marriage is a subject beyond the scope of the Act. Learned counsel for the appellant urged that the Child marriage Restraint Act in operation in the Travancore territory prior to its merger in the Indian Union contained a provision that the child marriage can be permitted and sanctioned by the Governmental authorities, and that therefore a marriage without such, sanction must be deemed to be invalid. I am, unable to agree with that contention. If a child marriage is sanctioned, by the proper authorities the penal provisions of the Act may riot come into play. I agree with the learned Subordinate Judge that the marriage of the plaintiff with the defendant is not invalid even assuming that it was one which. offended the provisions of the Child Marriage Restraint Act.
(9) The defendant was a minor on the date of the marriage. It was therefore contended on his behalf by his learned counsel that the marriage was invalid under Hindu law as there was no proof of his father or other elderly person in loco parents, having consented to or approved the marriage. There is proof that the plaintiff was given away in marriage by her parents. I am of opinion that a marriage under the Hindu law by a minor male is valid even though the marriage was not brought about on his behalf by his natural or lawful guardian..
There are texts of Hindu law which prescribe the persons who are entitled to give a girl in marriage. The text of Yajnavalkya is as follows:
The father, the paternal grandfather, the brother, a sakulya or a member of the same family, the mother likewise; in default of the first the next in order if sound in mind is to give the damsel in marriage.'
The text of Narada is as follows:
The father shall give his daughter in marriage or the brother with the father's consent or a grandfather, maternal uncle, kinsman or a relative; in default of all these, the mother it qualified; if she is not the remote relatives should give the girl in marriage.'
There are no texts prescribing an order of preference amongst relations of a minor boy to get him married. The absence of such a text only indicates that a male generally got married after attainment of majority as the period of Brahmacharya enjoined upon a male to devote himself to Vedic learning and studies was not likely to be over before the attainment of the age of majority.
(10) The marriage under the Hindu law is a sacrament and not a contract. The minority of an Individual may operate as a bar to his or her incurring contractual obligations. But it cannot be an impediment in the matter of performing a necessary samskara. In Venkatacharyulu v. Rangacharyulu, ILR 14 Mad 316 a Vaisunava girl was given in marriage by her mother without the consent of bet father who subsequently repudiated the marriage. It was held that the marriage was valid, though it took place without the consent of the lawful guardian. Mutthuswami Aiyar J. observed thus at page 318:
'There call he no doubt that a Hindu Marriage, is a religious ceremony. According to all the texts it is a samskaram or sacrament, the only one prescribed for a woman and one of the principal religious rites prescribed for purification of the soul......It is not mere contract in which a consenting mind is indispensable. The person married may be a minor or even of unsound mind, and yet, if the marriage rite is duly solemnised,, there is a valid marriage.'
Mayne in his Text book on Hindu Law, 11th Edn. page 143 states thus:,
'It has now been field by the High Courts of Madras kind Allahabad, in decisions of questionable correctness that, under the Hindu law, an idiot, lunatic or an impotent person can be lawfully married.'
Reference is made to the decision of this court in Amirthammal v. Vallimayil Ammal, ILR (1942) Mad 807. AIR 1942 Mad 693,.It is not necessary to express any opinion on the question whether a lunatic can contract a valid, marriage. But there can be no doubt that so far as a minor is concerned has marriage cannot be impugned merely on the ground, that his guardian failed to express his or her concurrence to the marriage.
(11) In Gajjanand v. Emperor, ILR 2 Lah 288: AIR 1922 Lah 139 Sir Shadilal C. J., observed thus at page 289 (of ILR Lah). (at P. 140 of AIR),
'The law is perfectly clear that the father is the proper person to, give his daughter in marriage, and, that unless the. father has deserted his wife and daughter, the mother cannot give the daughter in marriage without the consent of the father. But a Hindu marriage is a sacrament and the rule is now firmly established that a marriage which is duly solemnized and is otherwise valid, is n6t rendered invalid because, it was brought about without the consent of the guardian in marriage or even in contravention of an express order of the Court.
in Kasturi v. Chiranjilal, ILR 35 All 265 it was held that a minor's marriage without the consent of the guardian can be held to be valid on the application of the doctrine of factum valet. At page 269 the learned Judges observed thus: '..........there is no case, of which we are aware in which. the marriage of a Hindu girl effected without force and fraud by her relations has, after it has actually taken place been declared to be invalid for want of the consent of the legal guardian. Neither Yagnavalkya nor the mitakshara lays down that the marriage of a girl effected without the consent of her legal guardian, invalid. In the case of Khushalchand v. Bai Mani, ILR 11 Born 247 the court Held that the texts on the subject were directory rather than mandatory, that the consent of the legal guardian was not necessarily of the essence of the marriage, and that it would be proper to apply the, principle of factum valet to a marriage effected without such consent but also without either force or fraud.'
In judgment the marriage cannot be held to he invalid for want of proof that the defendant's guardian consented to it.
(12) The last contention urged on behalf of the appellant was that the suit itself was not maintainable in view of the provisions of the Hindu Marriage Act of 1955. This Act came into force on 20-12-1956 when it received the assent of the President. The suit was instituted on 2B-5-1956. It was firm instituted before the District Court of Nagarcoil. After the merger into. the Madras State, the Additional District Court of Nagarcoil on whose file the suit remained came to function as the Principal Subordinate judge court and that Court therefore entertained and disposed of the suit. The argument on behalf of the appellant is that under S. 4 of the Act any other law in force immediately before the commencement of the Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act, and that under S. 9 when either the husband or the wife has without reasonable cause withdrawn from the society of the other, the aggrieved party may apply by a petition to the District Court for restitution of conjugal rights and that by the operation of these provisions the normal remedy of a civil suit to obtain the relief of restitution of conjugal rights is no longer available to the aggrieved spouses.
This point was not raised in the writes statement, nor urged at the trial of the suit and not raised in the Memorandum of grounds of appeal in this court. Any application under S. 9 of the Act can he made to the 'District Court' which is defined under the Act in S. 3(b) as follows:
'District Court means in any area for which there is a civil court that court and in any other area the principal Civil Court of original jurisdiction and includes any other civil court which may be specified by the State Government by notification in the official Gazette or having jurisdiction in respect of the matters dealt with in this Act.' It is not disputed that the State Government issued a notification dated 29-1-1957 clothing the courts of Subordinate Judges with jurisdiction exercisable under the Act. The judgment in this case was pronounced on 8-8-1957. In view of the notification that court was certainly competent to adjudicate the dispute between the parties if an application under Sec. 9 had been filed. It cannot therefore be said that the judgment and decree of the court below is a nullity.
Learned counsel for the appellant strongly relied upon the decision of the Allahabad High Court in Bikrarn Singh v. Sudarsan Singh, : AIR1961All150 , and contended that the question of jurisdiction can he raised even at a late stage as a decree passed without jurisdiction was ab initio void. in the Allahabad case. the decree was passed by the District Munsifs Court which was certainly not a competent court as there was no notification in the official Gazette clothing Munsifs with jurisdiction. I do not think that the principle laid down by that decision can have any application to the facts of the present case. I am of opinion that the appellant is not entitled to raise the question of jurisdiction at this stage of the proceedings and I am also of opinion that in view of the fact that the Sub Court of Nagarcoil was competent to decide the matter the fact that its jurisdiction was invoked in a regular suit rather than in an application under S. 9 of the Act is a were matter of form which cannot render its judgment invalid. In my judgment, the Act having come into force during the pendency of the suit, cannot govern the suit.
(13) The appeal fails and is dismissed with costs.
(14) Appeal dismissed.