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Dolly Bathena Vs. Shaik Fazle Ellahi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1942Cal42
AppellantDolly Bathena
RespondentShaik Fazle Ellahi
Excerpt:
- .....respondent shaik fazle ellahi, is null and void. the petitioner, as her birth certificate and her father's evidence prove, was born on 5th october 1921. accordingly on 23rd may 1939, which is the date of the marriage i am asked to annul, her age was 17 years and 7 months. the respondent, whose age, as declared before the registrar, is 24 years, was studying at an establishment, which teaches dentistry and is situated in lower circular road near the house in which the petitioner's parents reside. it appears that the petitioner was attending school in 1939 and the respondent scraped an acquaintance with her on her way to or from the school she was attending. she says that they fell in love with one another, and agreed to marry. it was also agreed that they should not set up house together.....
Judgment:
ORDER

Panckridge, J.

1. There are certain features in this otherwise unimportant case which I can only describe as disquieting. The facts are as follows : The petition is a wife's petition presented under the Divorce Act read with Section 17, Special Marriage Act of 1872, and it seeks for a declaration that the marriage of the petitioner to the respondent Shaik Fazle Ellahi, is null and void. The petitioner, as her birth certificate and her father's evidence prove, was born on 5th October 1921. Accordingly on 23rd May 1939, which is the date of the marriage I am asked to annul, her age was 17 years and 7 months. The respondent, whose age, as declared before the Registrar, is 24 years, was studying at an establishment, which teaches dentistry and is situated in Lower Circular Road near the house in which the petitioner's parents reside. It appears that the petitioner was attending school in 1939 and the respondent scraped an acquaintance with her on her way to or from the school she was attending. She says that they fell in love with one another, and agreed to marry. It was also agreed that they should not set up house together immediately after the marriage, but should wait until the respondent had some assured position and income from his profession.

2. On 9th May the parties gave the notice of marriage which is required in the case of marriages under the Act and this notice which was signed by the petitioner gave her age as 'about 18 years.' The petitioner's evidence is that on 23rd May 1939, the Registrar of Marriages under the Act, Khan Saheb Kazi N. Rahaman, went to the boarding house in Metcalfe Street where the respondent was staying, and there solemnized a marriage under the Act between them. The signature of the parties was duly witnessed by three witnesses, two of whom had been brought for the purpose, the third, apparently being pressed into service at the last moment. Under the provisions of the Special Marriage Act one of the conditions which must be fulfilled before parties can be married under the Act, is that laid down in Section 2(3) and is that each party must, if he or she has not completed the age of 21 years, have obtained the consent of his or her father or guardian to the marriage. Section 10 of the Act goes on to provide that 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 Schedule 2 to the Act and also that, 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 every case it shall be countersigned by the Registrar. Part 2 of Schedule 2 contains two 'declarations' on a single form to be made respectively by the bridegroom and bride. Paragraph 5 of the bride's declaration is as follows:

(And when the bride has not completed her age of 21 years, unless she is a widow):5. The consent of M N my father (or guardian, as the case may be) has been given to a marriage between myself and A B and has not been revoked.

3. The form concludes:

(And when the bridegroom or bride has not completed the age of 21 years, except in the case of a widow):Signed in my presence and with my consent by the abovenamed AB and CD: MN the father (or guardian) of the abovenamed AB (or CD, as the case may be).

4. Now the use of this form is compulsory, and it is reasonably foolproof. The attention of the parties and of the Registrar is drawn to the necessity of the consent of the father or guardian when one of the spouses is under the age of 21, and, when both have passed that age, para. 5 of the form can be penned through as inapplicable. Apparently, however, some officer of the Bengal Government has in the past employed his time in improving on the efforts of the Legislatures, and has drafted various alternative forms, which have been adopted without the slightest legal justification in supersession of the statutory form. A true copy of the actual form (Bengal Form No. 1622, Act 5 of 1872) used for this marriage is Ex. B in the case. In the right hand top corner of the form appears (when the parties are of full age). This is in itself misleading, because a party may have attained the age of majority according to the personal law to which he or she is subject, and may still be under the age of 21 years, and therefore incapable of contracting a marriage under the Act except with the father's or guardian's consent.

5. The form contains no reference to the consent of the father or guardian, nor is a space allotted for the signature of the father or guardian. Since the hearing, I have obtained a blank form (Bengal Form No. 1623, Act 3 of 1872) which I have attached to the record. Assuming the use of alternative forms to be legal, this is the form which presumably is appropriate to a marriage between the petitioner and respondent. In the right hand top corner of the form appears '(when the bridegroom is of full age and bride minor).' I have already pointed out how misleading this phraseology is. The declaration to be made by the bride is in the proper statutory form and there is a space allotted for the signature of the father or guardian. If this form had been used, it is hardly to be believed that the Registrar would have consented to solemnize the marriage. However, although he had before him the signed declaration of the petitioner, dated 9th May 1939, that her age was about 18 years, and although, to judge from her appearance to-day she could scarcely have looked so old, he proceeded to perform the ceremony without obtaining the evidence which the Act requires of the consent of the petitioner's father. The whole situation is lamentable and discreditable to all concerned. I may perhaps say that, until she was rebuked by me the demeanour of the petitioner indicated that she is young woman of considerable levity, and it is precisely girls whose characters- resemble that of the petitioner, who are most in need of every protection which the law can give them. To return to the facts of the case, both the petitioner and her father have given evidence that four days after the marriage the father, having heard a rumour of what had taken place, taxed his daughter with having been secretly married and she made a clean breast of the whole thing, and in consequence he made the necessary investigations.

6. It only remains for me to add that by reason of Section 3 (1), Divorce Act, I have to be satisfied that the petitioner and the respondent resided within the jurisdiction of the Court when the petition was presented, or alternatively that they last resided together within such jurisdiction. The evidence is that the parties never resided together. In the petition it is alleged that the marriage has never been consummated, and although there has been no evidence on the point, this is not denied in the answer, and it is Certain that they have never attempted to set up anything in the least resembling a matrimonial home. Therefore, the Court must be satisfied that the parties both resided within its jurisdiction when the petition was presented. About the petitioner's residence there is no doubt whatever. With regard to the respondent, it is clear that he had resided in Calcutta for the purpose of study for a considerable time previous to the marriage. It is true that after the marriage he went to his home in the Punjab, but it appears that this was because the College was closed for holidays, and the petitioner and her father have given evidence, which I accept, that they saw him, though they did not speak to him, on several occasions in the months of September, October and November 1939. Therefore although the petition was presented on 25th August 1939 and there is no evidence as to the whereabouts of the respondent on that day, I hold that if he was absent, his absence was merely temporary and he was still residing within the jurisdiction of the Court within the meaning of the Act. I therefore declare the marriage of the petitioner with the respondent null and void, and I award costs against the respondent. This declaration will take the form of a decree nisi. I direct that in view of the observations I have made with regard to the way in which the provisions of the Special Marriage Act have been disregarded, that a copy of my judgment be forwarded to the Chief Secretary to the Government of Bengal.


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