BASANA SEN Vs. AGHORE NATH SEN

JUDGEMENT

(1.) In this case, the learned District Judge of Dacca has had before him a petition under the Special Marriage Act of 1872, asking that a certain marriage may be declared null on the ground that the woman at the time of the marriage in 1926 had not completed the age of 21 years and had not obtained the consent of her father. It appears that this girl was a pupil of the Eden Intermediate College at Dacca and that the respondent was a person who had been employed as her tutor and that on 9 April 1926, they went before the Registrar and made declarations under the Special Marriage Act. Both of them are Hindus and the Special Marriage Act would not, therefore, apply to them at all, but for recent legislation, namely, Act 30 of 1923. It appears that the form of the declaration at the end of the schedule to the Special Marriage Act of 1872 contains a paragraph which has to be sworn to when the party has not completed the age of 21 years to say that the consent of the father or guardian has been given. In this case, the declaration was correctly filled up, but this paragraph appears to have been omitted altogether. Neither of the parties appears to have committed perjury, therefore, in this matter. But it is certainly very remarkable that the forms given in Schedule 2 do not require the parties to state what their actual age is, and, in particular whether or not each party is of the age of twenty one years. All that is required is that the bridegroom is to state that he is 18 years old and the bride is to state that she is 14 years old. This appears to me to open the door to great laxity. In this case, it appears to me that there has been some remissness in respect of the fact that the paragraph dealing with the consent of the father has apparently been omitted from the declaration altogether. I think this case is one which might usefully be made an occasion for a careful consideration of the working of this Act, in view of the recent legislation of 1923 and I propose to send a copy of the judgment of this Court in this case to the Government of Bengal in order that they may have an opportunity of considering the matter.

(2.) On the merits of the petition, I am satisfied that it has been now properly proved that at the time this pretended marriage was entered into, the girl did not have the consent of her father and, accordingly, under the express terms of Section 17, Special Marriage Act, it was right for the learned District Judge to pronounce the order which he has pronounced and which, in my judgment, ought now to be confirmed. The petitioner will have the costs of this applications. The costs will be assessed at three gold mohurs. C.C. Ghose, J.

(3.) I agree. B.B. Ghose, J.