Om Parkash, J.C.
1. This appeal is directed against a decree of the learned Senior Subordinate Judge, Bilaspur, whereby the respondent was granted a decree for restitution of conjugal rights, against the appellant, on a petition, under Section 9 of the Hindu Marriage Act.
2. The case of the respondent was as follows: The appellant and the respondent had been married on the 16th Kartik, 2016 KB. at Markanda and, thereafter, the appellant had lived with the respondent, as his wife, at his village Basla. Arjun, the brother of the appellant, lodged a false report with the police that the respondent had kidnapped her. Arjun had succeeded, through the help of the police, in securing the custody of the appellant, on the 28th Kartik, 2016 Bk. Since that date, the appellant had withdrawn from the society of the respondent. The police had put up a challan against the respondent but he was acquitted. As the appellant had withdrawn from the society of the respondent without reasonable excuse, he prayed that he be granted a decree for restitution of conjugal rights.
3. The appellant contested the petition. She denied that she had contracted any marriage with the respondent. She pleaded that even if it be proved that a marriage ceremony had been gone into between the parties, the marriage was invalid as the appellant was a minor on the date of the marriage and the consent of her guardian was not obtained.
4. The only issue, framed in the case, was whether the appellant was the legally wedded wife of the respondent. The learned Senior Subordinate Judge decided the issue in favour of the respondent and held that the appellant had contracted marriage with the respondent, according to Hindu rites and ceremonies, and that though the appellant was a minor at the time of the marriage, and the consent of her guardian to the marriage was not obtained, yet the marriage was not rendered invalid on that account. As no other issue arose in the case, the learned Senior Subordinate Judge granted the respondent a decree for restitution of conjugal rights.
5. The first contention of the learned counsel for the appellant was that the learned Senior Subordinate Judge was in error in holding that the appellant had contracted marriage with the respondent on the 16th Kartik, 2016 Bk. This contention of the learned counsel is without any substance. There is reliable evidence, on record, that a marriage ceremony, according to Hindu rites, was performed, between the appellant and the respondent, on the 16th Kartik, 2016 Bk. (His Lordship considered the relevant evidence and proceeded :)
6-7. It was, next, contended, by the learned counsel for the appellant that even if it be held that marriage had been performed, between the parties, and that the appellant was a consenting party to it, the marriage was not a valid one as the appellant was a minor on the 16th Kartik, 2016 Bk, the date of marriage, and the consent of her guardian, which was essential, was riot obtained. It is clear from the statements of Bass DW. 2, the maternal uncle of the appellant, Totu alias Arjun D. W. 3, the real brother of the appellant and from the entries Ex. DA, Ex. DB, and Ex. DC, from the Birth Register, relating to the birth of three children of Mahant deceased, the father of the appellant, that she was less than 18 years old on the 16th Kartik, 2016 Bk. the date of marriage. It is not disputed that the consent of the guardian of the appellant to the marriage was not obtained.
The contention of the learned counsel for the appellant was that as according to Clause (vi) of Section 5 of the Hindu Mariage Act, the consent of the guardian, was essential and as no such consent was obtained, the marriage was not valid. This contention of the learned counsel runs counter to the provisions of Section 11 of the Hindu Marriage Act (hereinafter referred to as the Act) and also to the intention of Legislature and cannot be accepted. According to Section 11 of the Act, a marriage will be null and void only if it contravenes any one of the conditions, specified in, Clauses (i), (iv) and (v) of Section 5. Section 11 does not make a marriage null and void if it contravenes the condition, given in Clause (vi) of Section 5. The Act is a codifying enactment and is to be regarded as exhaustive of the matters dealt with in it. Only those marriages will be void which are declared, as such, by the Act itself. Section 11 of the Act declares which marriages will be void.
A marriage which contravenes the condition, specified in Clause (iii), or, Clause (vi), of Section 5 of the Act is not declared to be void by Section 11, or any other section of the Act. The omission to declare such a marriage to be void by the Legislature does not appear to be merely accidental. The Legislature has provided punishment in Section 18 of the Act, for the breach of the aforesaid conditions. It is not for the Court to speculate upon the reasons for the aforesaid intentional omission. But, it may be that the Legislature did not intend to declare child marriages, contravening the condition, about age, specified in Clause (iii) of Section 5, as void, as, though such marriages are discouraged by society and law, yet the evil is deep-rooted and child marriages are not rare in the country and declaring such marriages as void must have resulted in unfortunate consequences and unnecessary hardship to the parties.
The Legislature, therefore, stopped short of declaring such marriages as void, and contented itself by making such marriages merely punishable. In case of the condition, specified in Clause (vi) of Section 5, a contingency can be easily visualized, where a guardian, e.g., a guardian of a minor orphan girl, may refuse to give consent to a marriage, with a bridegroom, loved by the girl, and otherwise too a quite suitable match, from some improper or ulterior motive. If the girl contracts marriage in such a contingency, without obtaining the consent of her guardian, and the marriage is to be void, because of the absence of the consent of the guardian, it will be against the welfare of the minor girl. It is to be noted that a Hindu marriage is a sacrament and there is no bar to a minor, solemnizing his own marriage, though he may not be competent to incur a contractual obligation.
It is, also, to be noted that the contravention of the condition, specified in Clause (ii) of Section 5 of the Act, renders the marriage only voidable and not void, vide Section 12(1)(b) of the Act. The clear conclusion from the above discussion is that it was not the indention of the Legislature that the contravention of every and any condition, specified in Section 5 of the Act, would render a Hindu marriage void and that its intention was that the contravention of only any of the three conditions, specified in Clauses (i), (iv) and (v), would render a Hindu marriage null and void. It is, therefore, to be held that the marriage of the appellant with the respondent was neither void nor voidable, though it contravened the condition, specified in Clause (vi) of Section 5 of the Act inasmuch as the consent of her guardian to the marriage was not obtained.
8. In Mst. Kalawati v. Devi Ram, AIR 1961 Him Pra I, a girl below 15 years of age was given in marriage by her brother, who himself was below 18 years. The question, which arose for decision, in that case, was whether the marriage was void. It was held that the minority of the girl or of the guardian in marriage, is by itself not a ground for rendering the marriage void and that the marriage was valid. Similarly, in Smt. Naumi v. Narotam, AIR 1963 Him Pra 15, it was held that the marriage of a girl below fifteen years of age, though contravened the condition, specified IN CLAUSE (iii) of Section 5 of the Act, was not void. The authority Kunta Devi v. Siri Ram Kalu Ram, AIR 1963 Punj 235, relied upon by the learned counsel for the appellant, is distinguishable, on facts, from the present case. In that authority it was held that no valid marriage had taken place as the essential ceremonies of homam and saptapadi were not performed. It was, further, found, in that case that trickery was practised on the girl and she was induced to go through the ceremony of marriage under duress. In the present case, it has been shown that the appellant had solemnized the marriage voluntarily and no duress was exercised upon her and that the essential ceremonies of homam and saptapadi were performed.
9. It was, finally, urged by the learned counsel for the appellant that the appellant had contracted a marriage with one Budhu on the 30th Kartik, 2016 Bk, and that this fact constituted a legal ground for refusing relief of restruction of conjugal rights to the respondent. This contention of the learned counsel does not deserve a moment's consideration. It is unnecessary to decide, for the purposes of this case, whether the appellant had contracted a marriage with Budhu on the 30th Kartik, 2016 Bk, or not, as even if it be assumed for the sake of argument, that such a marriage was performed, the marriage would be void as there already existed a valid marriage between the appellant and the respondent. Such a void marriage cannot be a legal ground for refusing the relief of restitution of conjugal rights.
10. No other point was urged in the appealwhich fails and is dismissed with costs of the respondent.