DOLLY BATHENA Vs. SHAIK FAZLE ELLAHI

JUDGEMENT

(1.) There are certain features in this otherwise unimportant case which I can only describe as disquieting. The facts are as follows : The petition is a wife's petition presented under the Divorce Act read with Section 17, Special Marriage Act of 1872, and it seeks for a declaration that the marriage of the petitioner to the respondent Shaik Fazle Ellahi, is null and void. The petitioner, as her birth certificate and her father's evidence prove, was born on 5 October 1921. Accordingly on 23 May 1939, which is the date of the marriage I am asked to annul, her age was 17 years and 7 months. The respondent, whose age, as declared before the Registrar, is 24 years, was studying at an establishment, which teaches dentistry and is situated in Lower Circular Road near the house in which the petitioner's parents reside. It appears that the petitioner was attending school in 1939 and the respondent scraped an acquaintance with her on her way to or from the school she was attending. She says that they fell in love with one another, and agreed to marry. It was also agreed that they should not set up house together immediately after the marriage, but should wait until the respondent had some assured position and income from his profession.

(2.) On 9 May the parties gave the notice of marriage which is required in the case of marriages under the Act and this notice which was signed by the petitioner gave her age as "about 18 years." The petitioner's evidence is that on 23 May 1939, the Registrar of Marriages under the Act, Khan Saheb Kazi N. Rahaman, went to the boarding house in Metcalfe Street where the respondent was staying, and there solemnized a marriage under the Act between them. The signature of the parties was duly witnessed by three witnesses, two of whom had been brought for the purpose, the third, apparently being pressed into service at the last moment. Under the provisions of the Special Marriage Act one of the conditions which must be fulfilled before parties can be married under the Act, is that laid down in Section 2(3) and is that each party must, if he or she has not completed the age of 21 years, have obtained the consent of his or her father or guardian to the marriage. Section 10 of the Act goes on to provide that before the marriage is solemnized the parties and three witnesses, shall, in the presence of the Registrar, sign a declaration in the form contained in Schedule 2 to the Act and also that, if either party has not completed the age of 21 years, the declaration shall also be signed by his or her father or guardian, except in the case of a widow, and, in every case it shall be countersigned by the Registrar. Part 2 of Schedule 2 contains two "declarations" on a single form to be made respectively by the bridegroom and bride. Paragraph 5 of the bride's declaration is as follows: (And when the bride has not completed her age of 21 years, unless she is a widow): 5. The consent of M N my father (or guardian, as the case may be) has been given to a marriage between myself and A B and has not been revoked.

(3.) The form concludes: (And when the bridegroom or bride has not completed the age of 21 years, except in the case of a widow): Signed in my presence and with my consent by the abovenamed AB and CD: MN the father (or guardian) of the abovenamed AB (or CD, as the case may be).