A R MANUEL Vs. EMPEROR

JUDGEMENT

(1.) In this case a Rule was issued to show cause why the conviction and sentence passed upon the petitioner should not be set aside. The Rule was issued on the ground that the age being required to be put in under the schedule to Section 38, Indian Christian Marriages Act (15 of 1872), although not required by the section, the misdescription of the age in the notice form does not amount to an offence under Section 66(b) of the Act.

(2.) Mrs. Gilbert, wife of Ivan Gilbert, filed a complaint against the accused, alleging that he had abducted her daughter Noreen, aged 17 years. That was on 22 January, 1935. On 12th January the accused had applied to the Marriage Registrar in Writers Buildings for a license to be married on 17 January, declaring the girl's age to be 22. The girl left her home on the 17 and could not be traced. Thereupon a warrant was issued for the production of the girl and a summons against the accused under Section 366, I.P.C. The accused appeared in Court on the 29 and the girl was found by the police on 6 February and produced in Court. In course of this trial, Ivan Gilbert filed a complaint on 20 February 1935, against the accused under Section 66(b), Indian Christian Marriages Act. It is difficult to understand how the proceedings under Section 366, I.P.C., came to be instituted against the petitioner, and if instituted came to be dealt with by a responsible Court; because it must have been obvious to everybody concerned that having regard to the undoubted age of the girl and her willingness throughout there could be no charge under that section. This may explain the reason for the initiation of the present proceedings which, in our opinion, were hardly necessary, for reasons which I will explain hereafter. These proceedings seem to have been taken owing to the disappointment of the complainant over the failure of the proceedings under Section 366.

(3.) On the point of law raised by the learned Advocate for the petitioner, Section 38 provides that notice shall be given in the form contained in Schedule 1 thereto annexed, or to the like effect, and shall state therein the name, the surname and the profession or condition of each of the parties intending marriage, the dwelling place of each of them, the time during which each has dwelt therein and the place at which the marriage is to be solemnised. The schedule in addition to this contains a space for the ages of the two persons who desire to be married. In my opinion the section governs the schedule and the space left for age is not necessary to be filled with that particular, because no such provision is made in the section. The truth of the matter in my opinion is that some days later than the passing of the section in its present form, it was considered necessary that ages of both parties should be given in the schedule, but this alteration has not been provided in the section itself. Every particular in the schedule, except the age, is provided for in the section. In Dean V/s. Green (1883) 8 PD 89, Lord Penzance stated, in respect to a similar section and schedule, Such being the effect of the enacting portions of the statute, it would be quite contrary to the recognized principles upon which Courts of law construe Acts of Parliament, to enlarge the conditions of the enactment, and thereby restrain its operation, by any reference to the words of a mere form, given for convenience sake in a schedule and still more so when that restricted operation is not favourable to the liberty of the subject but the reverse. It is needless to cite authorities for these principles of construction, but it so happens that there is in existence a most apposite one by a Judge of high repute (Lord Cottenham) in relation to the schedule of this very statute. In In re Baines 1 Cr & Ph 31, he said speaking of this very schedule, if the enacting part and the schedule cannot be made to correspond, the latter must yield to the former. But that does not dispose of the matter, because Section 66 provides, inter alia, that whoever, for the purpose of procuring any marriage, intentionally makes any false oath or signs any false notice or certificate etc.