EMPEROR Vs. NARAYAN MUDLAGIRI MAHALE

JUDGEMENT

(1.) THE accused in this case were prosecuted under Section 6 of the Child Marriage Restraint Act, XIX of 1929, in that they permitted, or failed to prevent, the marriage of their son, who was under the age of eighteen years. THE marriage in question took place at Goa, outside British India, and the accused were tried by the District Magistrate of Kanara, where the accused were residing at the time of the charge. THE question which we have to determine is whether the conviction was legal.

(2.) IN general the subject of trials in British INdia for offences committed outside British INdia is dealt with by Section 4 of the INdian Penal Code, and Section 188 of the Criminal Procedure Code. It is instructive to note the history of those two sections. They are taken substantially from Sections 8 and 9 of the Foreign Jurisdiction and Extradition Act, 1879. Section 8 provides : The law relating to offences and to criminal procedure for the time being in force in British INdia shall, subject as to procedure to such modifications as the Governor General in Council from time to time directs, extend (a) to all European British subjects in the dominions of Princes and States in INdia in alliance with Her Majesty; and (b) to all Native INdian subjects of Her Majesty in any place beyond the limits of British INdia. This section deals with the subject-matter of Section 4 of the INdian Penal Code as it now exists, though the wording is by no means identical. Then Section 9 provides that such persons may be dealt with as if the offences had been committed in the place in British INdia where they may be found. Section 9 seems to me to deal purely with procedure, and to be a corollary to the substantive enactment contained in Section 8. Section 9 was repealed in 1882, and was re-enacted in Section 188 of the Criminal Procedure Code of that year, which is in the same terms as the corresponding section in the present Code. IN 1898 Section 4 of the INdian Penal Code was amended and enacted in its present form. Uptil that date the section had applied only to Government servants, but the amended section comprised also the two classes of persons covered by Section 8 of the Foreign Jurisdiction and Extradition Act, 1879, namely, Native INdian subjects in any place beyond British INdia, and British subjects within Native States.

(3.) IT was lastly argued by the Government Pleader that even if a child marriage celebrated outside British India did not constitute an offence, still permitting within British India such a marriage would be an offence, and that such permission was proved in the present case. Apart from the fact that this was not really the charge made against the accused, I am of opinion that Section 6 only aims at permitting or failing to prevent a marriage which is made penal under the earlier sections, and does not impose a penalty for permitting a marriage which is lawful.