Karnataka High Court
V. Mallikarjunaiah vs H.C. Goowramma on 30 July, 1996
Equivalent citations: I(1997)DMC10, ILR1997KAR964, 1997(1)KARLJ570, AIR 1997 KARNATAKA 77, 1997 (1) SCC 475, (1997) 2 MAD LW 456, (1997) 2 RECCIVR 40, (1997) 2 MAH LJ 425, (1997) 1 LS 31, (1997) 3 LANDLR 561, (1997) 2 CIVLJ 137, (1997) 2 MPLJ 4, (1997) 1 LJR 748, (1998) REVDEC 153, 1997 ALL CJ 1 526, (1997) ILR (KANT) 964, (1997) 3 LJR 290, (1997) 2 HINDULR 248, (1997) 1 KANT LJ 570, (1997) MARRILJ 184, (1997) 1 DMC 10, (1997) 1 CIVILCOURTC 582, (1997) MATLR 52, (1997) 2 CIVLJ 901, (1996) 4 CURCC 306
ORDER
1. A very unusual aspect of the law relating to Hindu marriages has been thrown up for decision in this C.R.P. It can basically be summarised in the following proposition namely, "whether a Hindu marriage solemnized in breach of the conditions prescribed in sub-clause (iii) of Section 5 of the Hindu Marriage Act, namely, the minimum age requirement of 21 and 18 as regards" the boy and the girl, is void, voidable or whether the marriage is to be treated as a valid marriage despite this breach?"
2. The facts giving rise to the dispute may briefly be set out. The petitioner before me instituted Matrimonial case No. 6/92 in the Court of the Civil Judge at Tiptur. His contention was that the marraige solemnized between him and the respondent on 13-6-1990 is liable to be declared as a void marriage because, the petitioner at that time had not completed the minimum age requirement of 21 years. He sought to rely on the fact that he had produced a school Transfer Certificate which indicated that his dale of birth was 1-5-1970, which indicated that he was 20 years, 1 month and 12 days old on the date when the marriage was solemnized. The respondent - wife applied to the trial Court for dismissal of the suit on the ground that no cause of action was made out. The plea taken up was that Section 11 of the Hindu Marriage Act governs the cases whereunder a Court may pass a decree of nullity of marriage and it was contended that if the parties are underaged, that Section 11 does not prescribe for the passing of a decree of nullity of marriage and that therefore, the petition sets out no cause of action and is liable to be dismissed. The learned trial Judge after hearing the parties, passed a speaking order dated 3-9-1993 dismissing the petition under Order 7, Rule 11 of the C.P.C. Effectively, the trial Court upheld the plea that no cause of action was made out and it is against this order that the present C.R.P. has been preferred.
3. The petitioner's learned advocate assailed the correctness of the order on the ground that it is erroneous in law. I do concede that the submission put forward by him does appear to carry conviction initially in so far as he submitted that undoubtedly Section 11 of the Hindu Marriage Act prescribed the categories of cases in which a Court may pass a decree for nullity of marriage. He, however, submitted that Section 11 must be read in addition to Section 5 of the Hindu Marriage Act which prescribes the conditions pre-requisite for a Hindu marriage. The learned advocate submits that the conditions set out in Section 5 must be treated as condition precedent in law and that if any of these conditions are breached, ipso facto the marriage will have to be rendered as null and void. As against this, he submits that Sections 11 and 12 which deal with void and voidable marriages, list a whole series of situations in which serious infirmities may exist with regard to the validity of the marriage and if the marraige suffers from such defects as to render it legally non est, that the Court may pass a decree to that effect, but that Section 5 will have to be read as being on par with Section 11 in so far as it is impossible to sustain a valid marriage unless the essential conditions for the solemnization of such a marriage has been complied with. The learned advocate placed strong reliance on a decision of the Punjab and Haryana High Court in the case of Smt. Krishni Devi v. Smt. Tulsan Devi. It is true that the High Court in question has observed that, "A marriage, under the Hindu Law, if it does not fulfil the conditions laid down in Section 5 is void ab initio, ipso jure, .....". I need to record here that as far as this decision is concerned, the Court was dealing with a situation where a previous marriage was subsisting when the second marriage was contracted and therefore, Clause (i) of Section 5 applies. There is no difficulty with regard to this aspect of the law because, Section 11 itself clearly refers to subsection (i) of Section 5 and specifies that if that infirmity exists in a marriage, that it will have to be treated as void. That is for good reason because, after the promulgation of the Hindu Marriage Act, the law did not permit a man to re-marry if his earlier marriage to another woman was subsisting even though the position was slightly different under the old Hindu Law.
4. The petitioner's learned advocate has placed even stronger reliance on a Division Bench decision of the Andhra Pradesh High Court in the case of Panchireddy Appala Suramma Alias Gadcla Appalasuramma v. Gadela Ganapatlu, wherein the Court was dealing with a case closer to the present one in so far as the girl was aged 6 and the boy was aged 8 and it was a typical instance of child marriage. In view of the fact that both of them were under aged by virtue of the provisions of the Hindu Marriage Act. even at that, the Division Bench upheld the contention that the marriage will have to be treated as null and void. I may mention here that the Division Bench upheld only one aspect of the matter that was canvassed, mainly that the object of introducing sub-clause (iii) in Section 5 of the Act was in order to prevent the obnoxious practice of child marriages that was prevalent in certain areas and certain strata of society. The learned Judges proceeded to hold that if the object of the Legislature was to prevent child marriages and therefore, sub-section (iii) was introduced in Section 5 of the Act, that a breach of this condition would ipso facto be fatal to the validity of the marriage. With utmost respect to the learned Judges concerned, I need to record that there are certain deeper and far more significant aspects of the matter which require to be taken into consideration by a Court in this regard and which did not fall for consideration before this Court and therefore, the decision in question is distinguishable.
5. Mr. Parthasarathi, learned counsel who appears on behalf of the respondent --wife, submitted that a distinction will have to be drawn between infirmities with regard to a marriage which would render it ipso facto void and infirmities which arc not that grave or serious as to vitiate the entire marriage contract, but which would at the same time be actionable. The learned counsel drew my attention specifically to the working of Section 11 which reads as follows:--
"11. Void marriage -- Any marriage solemnized after the commecemcnl of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, to be declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5."
He thereafter, drew my attention to Section 12 which deals with voidable marriages. The learned counsel submitted that Section 11 specifically indicates that a marriage solemnized in contravention of sub-clauses (i), (iv) and (v) of Section 5 will have to be declared as a void marriage and that similarly, if the marriage is in contravention of the conditions specified in Clause (ii) of Section 5, that it would be a voidable marriage. The learned counsel submitted that the scheme of the law clearly indicates, that when the Legislature intended that the absence of certain requirements would render the marriage voidable, that it specifically omilted to include sub-clause (iii) of Section 5 in either of these two sections. The argument proceeds on the footing that this was not by accident or oversight, but that it is a deliberate exclusion. The learned counsel went on to demonstrate that even as far as the grounds for dissolution of a marriage are concerned, that once again sub-clause (iii) of Section 5 does not find place there. The submission canvassed was that even though the law desired that persons who are under-aged should not be permitted to marry, that the law took into consideration the possibility, having regard to the social set up of this country, that there could be numerous occasions when such breaches took place. He contended that if such marriages were to be rendered as void, that certain irreversible consequences result, one of which is that irrespective of what happens to the boy thereafter, that it would be close to impossible, regardless of a decree from the Court, for the girl to thereafter find a spouse. He submitted that one is required to be realistic with regard to prevailing situations and to therefore, provide that merely because a technical breach has been committed as far as sub-section (iii) to Section 5 is concerned, that the girl should not be deprived of her legal status as a wife and the attendant consequences such as financial support, security etc. The learned counsel vehemently submitted therefore, that these are aspects of the law which the Courts have not addressed themselves to, while the earlier decisions came up for consideration and that as far as the present case is concerned, that the order passed by the trial Court is perfectly valid and justified and should not be interfered with.
6. There is a subsidiary aspect of the case which I shall deal with. The petitioner's learned advocate advanced a strong plea that the order of dismissal Was premature. He submitted that the petitioner has been refused an opportunity of establishing his case. He further submitted that the petitioner ought to have been permitted to load evidence and to put forward his plea for a decree of nullity before the trial Court and that if he was disentitled either on facts or in law or both, that the Court ought to have passed an appropriate order at that point of time and should not have virtually nonsuited him at the very threshold itself. He submits that on this ground alone the order in question requires to be set aside. Normally, I would have straightway upheld this submission because, it is the scheme of the law that the Court cannot re-judge a case and secondly, it is well-settled law that every litigant is entitled to a fair opportunity of establishing his or her case before a competent forum. There are however, a class of a cases where a dismissal of the proceeding even at the initial stage is competent and Order 7, Rule 11 makes provision for such situations. One of those is a situation in which no cause of action has been made out. On facts, the solitary averment on the basis of which the petitioner contended that he was under-aged, was his Transfer Certificate from the School and the petitioner's learned advocate submitted that if no belter evidence was available, that the petitioner would have substantiated his age before the trial Court and that therefore, this material was good enough. I am unable to agree with his submission because, there is no averment that better evidence such as the Birth Certificate was not available and one cannot presume these facts. As the matter stood, the bald statement that the Transfer Certificate represented the age, would certainly be hopelessly inadequate in a situation where the entire case is completely dependent on the evidence regarding age. In addition to this, the fact remains that the ground pleaded is not a ground on which a decree for nullity of marriage can be passed and therefore, it is one of those situations where the dismissal was justified on the ground that no cause of action was made out. If a proceeding represents a situation where on a plain appraisal of the matcrial, the trial Court finds that no cause of action has been made out and that mechanically proceeding with the matter up to the stage of issues, evidence and judgment would be totally worthless, the Court would be more than fully justified in dismissing the proceeding at the threshold itself. In my considered view, this is one such case.
7. Coming back to the point of law that has been canvassed in this proceeding, one needs to take cognizance of the fact that matrimonial laws do make various special provisions principally because of certain irreversible consequences that the parties find themselves faced with. One of them is the situation in which if certain infirmities are disclosed in a marriage, and if there arc children born out of that marriage, that the law through a process of legal fiction, incorporates the provision of deemed legality. The whole purpose of this is in order to prevent the social consequences and the serious harm and damage that could occur to the parties as a result of infirmities in a marriage. Similarly, I must record here that certain angles of the law as projected by the respondent's learned counsel arc significant. It is for a very valid reason that the Legislature excluded sub-clause (iii) of Section 5 from the grounds specified in Ss. 11 and 12 as also from the grounds that are set out in Section 13 on the basis of which a marriage can be dissolved. The reason for this was quite obvious in so far as where misguided parents or relations may bind a young couple through a validity solmenized marriage, if at a subse-. quent point of time, merely on the basis of under-age, the marriage is to be declared as void, the consequences particularly to the girl or the young woman are absolutely irreversible. In situations such as the present one, they would have lived together as husband and wife for some time. There could also be situations in which children are born out of that wedlock and in this background, it would not only be harsh, but absolutely brutal if a Court were to technically void the marriage merely because the parties were under-age. Obviously, in such a situation, the grave consequences of such a Court order could be visited upon the parties virtually for no fault of theirs. To my mind, therefore, there is considerable substance in the argument that decrees voiding marriages can only be passed on the grounds or in the situations set out in Sections 11 and 12 of the Hindu Marriage Act. It is not permissible to accept the argument canvassed by the petitioner's learned advocate that the provisions of subsection (iii) of Section 5 must also be added on to the aforesaid.
8. There is another aspect of the matter in so far as the petitioner's learned advocate submitted before me that the law should not be interpreted in such a way as to defeat the very provisions of the enactment. The petitioner's learned advocate pointed out to me that if the court were to treat the breach of sub-section (iii) of Section 5 as being a mere irregularity and not a fatal infirmity to marriage and that therefore, the marriage does subsist irrespective of this irregularity, which may be termed as a procedural irregularity alone, that then the sole purpose of enacting this provision to discourage marriage between under-aged persons would be totally and completely defeated. The learned advocate therefore, submitted that it would be very necessary to prescribe the penalties as provided in the Act if persons marry in breach of these conditions. I do concede that the effect of incorporating subsection (iii) of Section 5 must be taken due cognizance of, but as indicated by me, it is very clear that though the Legislature desired to discourage marriage between under-aged persons, that it did not go to the extent of providing that such marriages would be void or voidable or that this can be a ground for divorce principally because, it was concerned with the consequences of such a situation. Having regard to the strata in which such marriages were likely to take place, the Legislature was contuious of the fact that such a provision should not have the result of rendering a large number of girls or young women virtually unmarried and destitute for life. The only security that a girl or a woman in such a situation is entitled to is within the framework of the marriage and if that marriage can be loosely undone or if it is not recognised by the law, it would result in disastrous social" consequences which is the only reason why this section was specifically excluded from Sections 11 and 12 of the Act. I do not share the view that such exclusion would provide a total licence to breach this provision or for that matter, that it would provide for immunity in such cases. The Legislature has promulgated Section 18 of the Act which provides for harsh penalties including a prosecution before a Criminal Court and even a fine and a jail sentence in the cases of such breaches. This is the only penalty which the Legislature thought necessary in cases of such breaches. Perhaps, in the light of the submission canvassed by the petitioner's learned advocate and the fad that cases of this type are still relatively common, it would have been advisable for the Legislature to have to provide for harsher penalties particularly as far as the parents, guardians and relatives who are responsible for the commission of these offences are concerned. In order to cure social evils and particularly having regard to the current thinking, it is highly desirable that the penalties provided in Section 18 should be considerably stepped up.
9. Having regard to the position in law that emerges, to my mind, no interference is called for as far as the present order is concerned. The present C.R.P. accordingly fails and stands dismissed. In the circumstances of the case, there shall be no order as to costs.
10. Petition dismissed.