V MALLIKARJUNAIAH Vs. H C GOWRAMMA

JUDGEMENT

(1.) A very unusual aspect of the law relating to Hindu marriages has been thrown up for decision in this C.R.P. It can basically be summarised in the following proposition namely, "whether a Hindu marriage solemnized in breach of the conditions prescribed in sub-clause (iii) of Section 5 of the Hindu Marriage Act, namely, the minimum age requirement of 21 and 18 as regards the boy and the girl, is void, voidable or whether the marriage is to be treated as a valid marriage despite this breach?"

(2.) The facts giving rise to the dispute may briefly be set out. The petitioner before me instituted Matrimonial case No. 6/92 in the Court of the Civil Judge at Tiptur. His contention was that the marriage solemnized between him and the respondent on 13-6-1990 is liable to be declared as a void marriage because, the petitioner at that time had not completed the minimum age requirement of 21 years. He sought to rely on the fact that he had produced a school Transfer Certificate which indicated that his date of birth was 1-5-1970, which indicated that he was 20 years, 1 month and 12 days old on the date when the marriage was solemnized. The respondent - wife applied to the trial Court for dismissal of the suit on the ground that no cause of action was made out. The plea taken up was that Section 11 of the Hindu Marriage Act governs the cases whereunder a Court may pass a decree of nullity of marriage and it was contended that if the parties are underaged, that Section 11 does not prescribe for the passing of a decree of nullity of marriage and that therefore, the petition sets out no cause of action and is liable to be dismissed. The learned trial Judge after hearing the parties, passed a speaking order dated 3-9-1993 dismissing the petition under Order 7, Rule 11 of the C.P.C. Effectively, the trial Court upheld the plea that no cause of action was made out and it is against this order that the present C.R.P. has been preferred.

(3.) The petitioner's learned advocate assailed the correctness of the order on the ground that it is erroneous in law. I do concede that the submission put forward by him does appear to carry conviction initially in so far as he submitted that undoubtedly Section 11 of the Hindu Marriage Act prescribed the categories of cases in which a Court may pass a decree for nullity of marriage. He, however, submitted that Section 11 must be read in addition to Section 5 of the Hindu Marriage Act which prescribes the conditions pre-requisite for a Hindu marriage. The learned advocate submits that the conditions set out in Section 5 must be treated as condition precedent in law and that if any of these conditions are breached, ipso facto the marriage will have to be rendered as null and void. As against this, he submits that Sections 11 and 12 which deal with void and voidable marriages, list a whole series of situations in which serious infirmities may exist with regard to the validity of the marriage and if the marriage suffer from such defects as to render it legally non est, that the Court may pass a decree to that effect but that Section 5 will have to be read as being on par with Section 11 in so far as it is impossible to sustain a valid marriage unless the essential conditions for the solemnization of such a marriage has been complied with. The learned advocate placed strong reliance on a decision of the Punjab and Haryana High Court reported in AIR 1972 Punj and Har 305 in the case of Smt. Krishni Devi v. Smt. Tulsan Devi. It is true that the High Court in question has observed that, "A marriage, under the Hindu Law, if it does not fulfil the conditions laid down in Section 5 is void abinitio, ipso jure, ........". I need to record here that as far as this decision is concerned, the Court was dealing with a situation where a previous marriage was subsisting when the second marriage was contracted and therefore, Clause (i) of Section 5 applies. There is no difficulty with regard to this aspect of the law because, Section 11 itself clearly refers to sub-section (i) of Section 5 and specifies that if that infirmity exists in a marriage, that it will have to be treated as void. That is for good reason because, after the promulgation of the Hindu Marriage Act, the law did not permit a man to re-marry if his earlier marriage to another woman was subsisting even though the position was slightly different under the old Hindu Law.