Pandrang Row, J.
1. This is an appeal from the acquittal of three of the accused in C.C. No. 29 of 1935 on the file of the District Magistrate of Kistna. The acquittal of these accused was ordered by the Sessions Judge of Kistna in Criminal Appeal No. 16 of 1936. The offences charged were Under Sections 5 and 6, Child Marriage Restraint Act (19 of 1929). These three accused were accused 3, 4 and 5 in the trial Court. Accused 3 and 4 were the parents of the bridegroom and accused 5 was the priest who solemnized the marriage, which is alleged by the prosecution to be a child marriage. The case for the prosecution was that the bridegroom was under 18 years of age and the bride under 14 years of age when the marriage was solemnized on 7th February 1935. Accused 1 and 2 were the parents of the bride and their convictions were upheld in appeal. Accused 6 was another priest who was said to have solemnized the marriage. He was acquitted on appeal, but there has been no appeal so far as his acquittal is concerned.
2. The learned District Magistrate in his judgment refers to the conflict of authority as to the question whether the parents are liable Under Section 5 or Section 6 or under both these sections of the Child Marriage Restraint Act, the decisions he refers to being those reported in Gaupatrao v. Emperor AIR 1932 Nag 174 and Munshi Ram v. Emperor : AIR1936All11 . The District Magistrate followed the decision in the Nagpur case to the effect that Section 6 alone applies to the case of parents. This view in my opinion is right and the criticism of the learned Sessions Judge does not appear to be sound. Apart from the marginal notes which are relied upon in the Nagpur case there is the proviso to Section 6 that no woman shall be punishable with imprisonment under that section which indicates that it is this section, namely Section 6, that is applicable to parents; the absence of such a proviso to Section 5 indicates that it was not meant to apply to parents. Further, the concluding words of Section 5 which throw upon the accused person the burden of proving that he had reason to believe that the marriage was not a child marriage, seem to show that this burden would not have been thrown by the Legislature on the parents who must know the age of their own child. The view therefore that Section 5 applies only to solemnization of marriage by others than parents appears to be correct and it follows therefore that Section 6 alone applies to parents who promote a child marriage or permit it or negligently fail to prevent it. It is not disputed that accused 3 and 4 who are the parents of the bridegroom cannot be convicted Under Section 6 merely because the bride was under 14 years, and that they can be convicted, if at all, Under Section 6, only if the bridegroom, that is their own son who was in their charge was under 18 years at the time of the marriage. The only question therefore that arises is whether the bridegroom was under 18 years of age, or in other words, a child as defined in the Act at the time of the marriage.
3. The District Magistrate appears to have relied mainly on the alleged admission of accused 3 in his statement during the trial in which his wife, accused 4, joined, to the effect that the bridegroom had not completed his 18th year at the time of marriage. The learned Sessions Judge points out that the District Magistrate was misled by a wrong translation of the statement of accused 3 in Telugu. The learned Sessions Judge does not say what the correct translation is, and on the other hand, make a mis-statement of fact when he says that there is absolutely no evidence that the bridegroom was under the age of 18 years. As a matter of fact there is the evidence of P.W. 1 to the effect that the bridegroom was 17 years old at the time of the marriage and this evidence was not attacked in cross-examination. The learned Sessions Judge must have completely lost sight of this evidence of the age of the bridegroom, for otherwise it is impossible to believe that he would have said that there is absolutely no evidence on the point. I have looked into the statement made by accused 3 in Telugu and I cannot say that the learned District Magistrate was clearly wrong in interpreting the last sentence in the statement to mean that the son had not completed 18 years. The last sentence really means that the son was just 18 years old. It may be that this was with reference to his age at the time the statement was made. Apparently the District Magistrate took it to mean that accused 3's son had just attained 18 years when accused 3 made the statement. If so he was right in coming to the conclusion that there was an admission to the effect that the bridegroom had not completed his 18 years at the time of the marriage because the statement was made very nearly a year after the marriage.
4. It is of course equally possible that the statement made by accused 3 meant that the bridegroom was just 18 years of age at the time of the marriage, in which case there would be no admission that the bridegroom was under 18 years at the time of the marriage. In this state of doubt as to what accused 3 really meant by his statement he and his wife are entitled to the benefit of the doubt, and his so-called admission cannot be relied upon in support of the prosecution. There is however, as I have pointed out, the uncontradicted evidence of P.W. 1 on the point. If that evidence that the bride-groom was only 17 years at the time of the marriage had been not true, the witness would not have been cross-examined, and in all probability evidence to rebut this evidence of P.W. 1 would have been put forward on the side of the defence. That was not done, and I have no doubt that P.W. 1 was not cross-examined because the evidence he gave was true and could not be successfully contradicted. There is no reason why that evidence should not be accepted, and it must therefore be found that the prosecution has established the fact that the bridegroom was under 18 years of age at the time of the marriage. It follows therefore that the acquittal of accused 3 was wrong and that it must be set aside. It is accordingly set aside and he is convicted of an offence punishable Under Section 6, Child Marriage Restraint Act (Act 19 of 1929) and sentenced to the sentence imposed by the District Magistrate upon him, namely, a fine of Rs. 150, and in default of payment simple imprisonment for one week.
5. As regards accused 4, that is the mother of the bridegroom, it has been argued that the mother cannot be convicted at the same time as the father of the bridegroom when it is obvious that the minor bridegroom was in charge of the father and not of the mother. The case for the prosecution was that the father himself promoted the marriage and got it performed. In these circumstances it is impossible to contend that the mother could have done anything to prevent it. She had no authority by law to prevent the marriage and her mere participation in the marriage cannot be regarded as constituting an offence punishable under Section 6 of the Act which is confined only to the person who has actual charge of the minor either as parent or as guardian at the time. It cannot, in the circumstances, be said that the mother of the bridegroom had charge of the bridegroom at the time of the marriage. Her acquittal though it was based on other grounds cannot therefore be interfered with in appeal. As regards accused 5, who is the purchit who solemnized the marriage in question, he was charged and convicted Under Section 5 of the Act. The conviction was set aside and he was acquitted in appeal on the ground that he had reason to believe that the marriage was not a child marriage. The learned Sessions Judge has not given any reasons for coming to the conclusion that the priest had reason to believe this; beyond his bare statement that he did believe that the bridegroom was over 18 years and the bride was 14 years, there is no scrap of evidence to show that he had any reason to believe that it was so. It is clear that both the bridegroom and the bride were children as defined by the Act and he has done nothing to discharge the burden which lay upon him to show that he had reason to believe that neither of them was a child.
6. The argument which found favour with the learned Sessions Judge was that it is well known to students of Medical Jurisprudence that it is impossible to estimate by appearance the age of a girl, between the ages of 12 and 16. This is the only reason given in support of the finding that accused 5 had reason to believe that the marriage was not a child marriage. If this were to be accepted as a sufficient reason, the burden imposed by Section 5 of the Act on the person charged will cease to exist for, in every case this argument would be available, viz., the statement in books on Medical Jurisprudence that it is impossible to estimate accurately by appearance the age of a girl between the ages of 12 and 16. Section 5 contemplates that the person who solemnizes a marriage must make some reasonable enquiry as to the ages of the parties to the marriage and satisfy himself that neither of the participants is a child. It is not enough if he merely looks at the bride and the bridegroom and forms his own opinion He must know that it is difficult to judge by appearance and the law casts upon him the duty of making reasonable enquiry before he can claim to have had reason to believe that neither the bride nor the bridegroom was a child. It is not alleged nor suggested that any enquiry was made and certainly there is no proof of any such enquiry being made. I have no doubt that the statement that accused 5 believed that neither the bride nor the bridegroom was a child is not true. His acquittal therefore must be set aside and it is accordingly set aside. He is convicted of an offence punishable Under Section 5 of the Act and sentenced to the same sentence as that imposed by the District Magistrate, viz., to pay a fine of Rs. 75 and in default of payment to undergo simple imprisonment for one week.