C.B. Capoor, J.C.
1. This appeal by Smt. Naumi through her next friend Shri Shib Lal is directed against a decree of the learned Senior Sub-Judge Mahasu, whereby the petition filed by the appellant under Sections 11, 12, 13 and 10 of the Hindu Marriage Act hereinafter to be referred as the Act, was dismissed.
2. The allegations on which the petition was founded were these. The petitioner was married to respondent No. 1 on 10th of Magh 2014 B (1958) in accordance with the Praina custom obtaining in the ilaqua. She was minor at the time of the marriage, the consent of her parents had not been obtained to the marriage and that her uncles Sarv Shri Sehaj Ram and Hirda Ram who had given her in marriage were the sons-in-law of Mani Ram the own brother of respondent No. I. At the time of the aforesaid marriage respondent No. 1 had another wife respondent No. 2 living with him and even if she is not proved to be his wife he was having sexual intercourse with her. After her marriage the petitioner lived at the house of respondent No. 1 for about 5 or 6 days only and during that period she did not have any sexual intercourse with him and was treated by him with cruelty. The age of respondent No. 1 was about 60 years and there was great disparity between him and her age.
3. The petition was resisted by the respondents. It was denied that repsondent No. 2 was married to respondent No. 1 or that she was having illicit connection with him. It was also denied that she had been treated with cruelty by them. It was alleged that after her marriage the petitioner lived with respondent No. 1 for about a year and thereafter fled away with one Bhup Ram. A report of the incident was made to the Gram. Pan-chayat and an amicable settlement was arrived at and she returned to the house of respondent No. I but 3 or 4 days thereafter went to her mother's place and from there went to the house of Nantia. It was denied that during the time that the petitioner lived with respondent No. I no marital intercourse took place between them.
4. The learned Senior Sub-Judge framed the following issues :
'1. Whether the marriage of the petitioner was performed without the consent of her parents?
2. Was another spouse. Smt. Sevti living with respondent No. 1 at the time of marriage of the petitioner with respondent No. 1?
3. In case issue No. 2 is not proved whether respondent No. 1 is living in adultery with respondent No. 2?
4. Whether it will be harmful or injurious for the petitioner to live with respondent No. 1
5. The learned Senior Sub-Judge recorded findings on all the issues against the appellant and in consequence dismissed the petition.
6. The first contention advanced on behalf of the appellant is that at the time of her marriage with respondent No. 1 she was about 13 or 14years old only and as such her marriage was in contravention of Section 5 Clause (iii) of the Hindu Marriage Act and was null and void. Section 5 of the Act prescribes the conditions for a Hindu Marriage and one of those conditions is that the bridegroom has completed the age of 18 years and the bride the age of 15 years at the time of the! marriage. Section 11 of the Act inter alia provides that any marriage solemnized after the commencement of the Act shall be null and void if it contravences any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5. The grounds on which any marriage solemnized whether before or after the commencement of the Act shall be voidable have been enumerated in Section 12 of the Act and a contravention of Clause (iii) is not one of those grounds.
On behalf of the appellant it has been contended that a marriage of a girl who had not completed 15, years of age at the time of marriage was invalid in view of Section 5 of the Act and there was an inadvertent lacuna in Sections 11 and 12 of the Act in asmuch as a contravention of Clause (iii) of Section 5 was not made a ground for the annulment of the marriage. I am, however, unable to accede to the contention. A reference to the Hindu Marriage and Divorce Bill as amended by the Joint Committee would indicate that a marriage solemnized after the commencement of the Act was voidable inter alia on the ground that the marriage contravened condition specified in Clause (iii) of Section 5. Such a provision, however, does not find place in the Act and the irresistible conclusion is that the Legislature did not intend that a marriage solemnized in contravention of Clause (iii) of Section 5 could be avoided. That conclusion is restrengthened by a reference to Section 18 of the Act which provides for punishment to a person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in Clauses (iii), (iv), (v) and (vi) of Section 5 and it could not be said that the Legislature was unmindful of the provision of law contained in Section 18 of the Act when it put Sections 11 and 12 on the legislative anvil.
In the case of Mst. Kalawati v. Devi Ram, AIR 1961 Him-Pra 1, a Hindu girl below 15 years was given in marriage by her minor brother prior to the coming into force of the Act. An application under Sections 10 and 12 of the Act was filed by the girl for getting the marriage annulled and it was held that she was not entitled to such a decree. The ratio of the decision which is equally applicable to the instant case was that the minority of the wife or of her guardian in marriage was by itself not a ground for getting it declared null and void under Section 11 or its annulment under Section 12. The contention advanced on behalf of the appellant is devoid of force and no question can arise of allowing it to be raised at the appellate stage. ,
7. It has next been contended on behalf of the appellant that the findings recorded by the Seamed Court below on issues Nos. 1 to 4 framed by it were not supported by the evidence on record. The contention has, however, not appealed to me. The evidence led on behalf of the appellant in proof of the fact that the consent of her parents was not obtained to the marriage was meagre. Similarly the evidence adduced in supportof the contention that the respondent had anotherwife living at the time of his marriage with the appellant or that he was carrying on illicit sexual intercourse with respondent No. 2 or that the treatment meted out to her was cruel and that it would be injurious or harmful for her to live with respondent No. 1 was grossly insufficient to support a finding in her favour. On the question of cruelty the evidence consisted of the sole testimony of the appellant and the learned trial Court acted rightly in not relying upon it. It was urged on behalf of the appellant that respondent No. 1 was accusing her of leading an adulterous life and on that ground she was entitled to a decree of divorce. The petition is not founded on any such allegation and no decree could be passed on the basis of a ground not set forth in the petition.
8. The appeal is devoid of merit and is,accordingly, dismissed under Order 41, Rule 11 ofC. P. C.