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Panmull Lodha and ors. Vs. R.B. Gadhmull Lodha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtKolkata
Decided On
Reported inAIR1937Cal257
AppellantPanmull Lodha and ors.
RespondentR.B. Gadhmull Lodha and ors.
Excerpt:
- .....me considerable embarrassment. it is admitted that the marriage which is in contemplation is a child marriage within the meaning of the child marriage restraint act, 1929, which among other things, provides a punishment for any person having charge of a minor, whether as parent or guardian or in any other capacity, who does any act to promote a marriage or permits a marriage to be solemnised, between two parties, one of whom is a child as defined by the act. 'child' is defined as a person who, if male, is under 18 years of age, and, if female, is under 14 years of age. here there is some dispute as to the age of kanchan bai, but it is admitted that the prospective bridegroom is below the age of 18 years.2. i observed that the application caused me some embarrassment. this is because.....
Judgment:

Panckridge, J.

1. This is an application on behalf of the next friend of the minor plaintiffs to sanction the expenditure of Rs. 55,000 for the marriage of the plaintiffs' minor sister Kanchan Bai. If the expenditure is sanctioned the sum expended is to be debited to the plaintiffs' share in the joint estate. The application has caused me considerable embarrassment. It is admitted that the marriage which is in contemplation is a child marriage within the meaning of the Child Marriage Restraint Act, 1929, which among other things, provides a punishment for any person having charge of a minor, whether as parent or guardian or in any other capacity, who does any act to promote a marriage or permits a marriage to be solemnised, between two parties, one of whom is a child as defined by the Act. 'Child' is defined as a person who, if male, is under 18 years of age, and, if female, is under 14 years of age. Here there is some dispute as to the age of Kanchan Bai, but it is admitted that the prospective bridegroom is below the age of 18 years.

2. I observed that the application caused me some embarrassment. This is because a short time ago I sanctioned the expenditure of funds in the hands of a receiver for the purpose of a marriage, which in essentials resembles the marriage now in contemplation. Subsequent consideration has caused me to entertain grave doubts whether the order I made on that occasion was a right order, and now that I have had the advantage of more elaborate argument, those doubts have been increased. Clearly, if the proposed marriage is celebrated in British India, those promoting it and permitting it to be solemnised will incur the penalties provided by the Act. The applicants to meet those objections, state that they are willing to undertake that the marriage shall be solemnised in some Indian State where the Child Marriage Restraint Act does not apply, and where there has been no legislation of a similar character. There are no materials to show that the members of this family are subjects of an Indian State or that they are domiciled in an Indian State. The common ancestor of the family is described in the plaint as one Kamalnayan Lodha, late of Ajmere, which is part of British India. Of the ten defendants nine are described as residing at Ajmere, and the tenth is described as residing at Nagore in Jodhpur State. It is pointed out that the Child Marriage Restraint Act, does not render child marriages void even when such marriages are celebrated in British India, and a fortiori it can have no effect. on the validity of such a marriage if celebrated elsewhere. Therefore, the applicants state, there can be no question of the money being expended in the celebration of a marriage which, when celebrated, will be invalid. I do not think that this consideration affects the matter. The preamble of the Act states that 'it is expedient to restrain the solemnisation of child marriages'. What the Court is asked to do is to facilitate a child marriage. It may indeed very well be that the Court will be unable to prevent this marriage taking place in an Indian State, if the parties manage to obtain the necessary funds from some other source. But nonetheless where the property, from which the funds are sought to be obtained, is in the hands of the Court, through its receiver, I consider the Court ought not to sanction its being used for a purpose, of which the Legislature has so clearly expressed its disapproval.

3. It cannot be suggested that the expenditure would be sanctioned by the Court if the proposal were that two minor British subjects, ordinarily resident in Calcutta, should pay a flying visit to an Indian State and there contract a child marriage within the meaning of the Child Marriage Restraint Act. Even assuming that the parties to the intended marriage are not British, subjects and are domiciled out of British. India it would surely be wrong in principle for the Court to facilitate conduct which the Legislature has made penal as being socially injurious, on the ground that the promotion of the contemplated marriage is not punishable by the law of the place where it is proposed to celebrate it. In these circumstances I dismiss the application. The parties will have their costs from the receiver as between attorney and client, to be debited to their respective shares. The receiver also will have his costs as between attorney and client. Certified for counsel.


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