GAJARA NARAN BHURA Vs. KANBI KUNVERBHAI PARBAT

JUDGEMENT

(1.) Heard learned counsel for the parties. Appellant in this case is the defendant and husband of respondent. Respondent plaintiff filed a suit for maintenance at the rate of Rs. 100.00 per month and the maintenance charges Rs. 200.00. The suit was dismissed by the learned Civil Judge (Junior Division) Bhuj but in appeal the learned Assistant Judge of Kutch set aside the judgment and decree of the Trial Court and decreed the plaintiff's suit to recover sum of Rs. 100.00 per month for maintenance from the defendant appellant. Costs of the suit and appeal was also awarded. On being Second Appeal preferred before this Court, the Court while admitting the appeal formulated substantial question of law said to be involved for consideration in this case : "Where the marriage solemnised is in contravention of the provisions of the Child Marriage Restraint Act is void or valid. The suit was filed on 11.11.1974. The plaintiff's case was that her marriage with the defendant took place in the Samvat Year 2025 according to rites and ceremony of Leuva Kanbi caste and she resided with her husband after marriage. She gave birth to one child whose name is Ramji and who is about one and half years old. The defendant deserted the plaintiff without any reasonable cause by sending her to her parents place and not allowing her to return to her husband's house, though she is ready and willing to reside with her husband. The defendant is not paying maintenance to her. The custody of her child is with the husband. In substance on the ground of husband deserting her without reasonable cause, she claims maintenance with effect from 11.11.1974 while residing separately. The defendant while did not deny the factum of marriage having solemnised but denied the validity of it on the ground that age of wife at the time of marriage was less than 15 years. Plea of divorce was also taken.

(2.) As noticed above, the suit for maintenance stand decreed by the appellate court and only question which is required to be considered in this appeal is whether marriage solemnised in violation of Child Marriage Restraint Act, 1929 is void, which could be ignored for the purpose of creating any obligation for maintenance. It is not in dispute as is found by the courts below that the plaintiff at the time of her marriage was aged about 10- 12 years as per her own admission. It is also not in dispute that husband at the time of marriage was of the marriageable age. That marriage was duly consummated and the relationship of husband and wife subsisted even after attaining the eligible age by the wife which resulted in birth of a child as well.

(3.) If one looks at the provisions of Child Marriage Restraint Act, 1929, the scheme of the Act envisages that it does not deal with the legality or validity of the marriage at all. It defines what is meant by child. It also defines child marriage to mean a marriage to which either of the parties in contract is a child. Sec. 3 makes a male above 18 years but below 18 years contracting child marriage punishable with imprisonment which may extend to 15 days or fine and Sec. 4 makes the contracting of child marriage by a male above 21 years punishable with simple imprisonment which may extend to three months and fine. Sec. 5 subjects any person performing, contracting or directing child marriage punishable with simple imprisonment. Sec. 6 makes a person who is guardian of a minor contracting child marriage liable to punishment with simple imprisonment which may extend to three months and fine. Sec. 7 to 10 deal with procedural part of taking cognizance of offences and jurisdiction of the Court and preliminary enquiries. Sec. 12 which is of significance for the present purposes empowers the Court if it is satisfied on information led before it through a complaint or otherwise that a child marriage in contravention of the Act has been arranged or is about to be solemnised to issue an injunction against any of the persons mentioned in Sec. 3, 4, 5 and 6 of the Act prohibiting such marriage. Reading of Sec. 3,4,5 and 6 leaves no room of doubt that a person contracting a child marriage has been used with reference to marriage with a girl below the prescribed age only. A girl of eligible age marrying a male child is not punishable under Sec. 3 and 4, as these provisions apply only to a male marrying a child. Even under Sec. 6, the words used are where a minor contracts a child marriage. In the context of Sec. 3 and 4, the phrase can reasonably lead to only one inference that here minor is referable to a male below 18 years of age contracting a child marriage, obviously, with a girl who too is a child, then the person having in charge of minor male has been held liable to punishment. Thus, firstly, it is to be seen that Child Marriage Restraint Act does not make a wife falling in the definition of child liable to contravention of the provisions of the Act.