B. Sivanandy vs P. Bhagavathyamma

Ramamurti, J.—This Letters Patent Appeal arises out of the suit O.S. No. 66 of 1956 (Sub Court, Nagarcoil) filed by the respondent herein

for restitution of conjugal rights. Her suit was decreed by the trial Court as prayed for and the present appellant preferred to this Court A. S. No.

84 of 1958 which was dismissed by Jagadisan, J. The present appeal is by the defeated defendant.

The plaintiff''s case is that she was married to the defendant in 1944 according to the custom and Hindu Sastras when she was 13 years old and

the defendant was 17 years old, that after she attained age her nuptial ceremony was celebrated in the house of the defendant, that she lived with

the defendant for sometime thereafter and that subsequently she was sent over to her parent''s house. Her further case is that thereafter she has

been staying in her parents'' house and that despite repeated requests and all efforts on her part to join her husband and live with him, the latter has

been, evading to take her back giving all kinds of lame excuses. As all attempts on her part to join her husband proved futile she filed the present

suit.

2a. The defendant, the appellant herein, resisted the suit raising all kinds of dishonest and untenable pleas. As will presently appear from the

judgment it is plain that the defendant is a thoroughly unscrupulous person and has no regard for truth whatsoever. In his written statement in one

breath he totally denied the factum of the marriage itself while at the same time he admitted that a ''form of marriage'' was undergone. Obviously

enough he also raised a plea that the marriage is invalid on the ground that at the time of the marriage lie was a minor and his guardian, i.e., his

father, had not consented to the marriage. He even went to the extent of casting aspersions upon the chastity and moral conduct of the plaintiff

alleging that she was living with one Paradesi Velar. But he did not have the courage to persist in this dishonest plea in the course of the trial and no

evidence was let in on this aspect of the matter.

Even though he raised several objections in his written statement regarding the validity of the marriage, in the course of the trial he relied upon

the following points only: (1) no marriage whatsoever took place between the parties; (2) the marriage is void under the Travancore Child

Marriage Restraint Act, as the defendant was aged 15 at the time of the marriage; (3) the usual ceremonies of the marriage offering a holy fire,

kannikadhanam, sapthapathi etc., were not performed. The learned trial Judge had no hesitation in negativing these frivolous contentions of the

defendant. On appeal in addition to the points already urged in the trial Court the defendant raised an objection that after the Hindu Marriage Act

of 1955 (hereinafter called the Act) came into force a suit for restitution of conjugal rights was not maintainable, that the plaintiff''s only remedy was

to file an application for restitution of conjugal rights u/s 9 of the Act and that in any event the plaintiff was not entitled to this relief on the ground of

undue delay in instituting the proceeding within the meaning of Section 23(1)(d). The State Government had issued a notification dated 29-1-1957,

conferring jurisdiction in the Courts of the Subordinate judges to entertain applications and proceedings under the Act in the manner as in the

District Courts, Jagadisan, J. took the view that if this objection about the form of the proceeding had been raised by the defendant in the trial

Court itself the plaintiff would have taken steps to convert the suit, into an application long before the case was taken up for trial and that the

appellant was therefore not entitled to raise this question of jurisdiction at that belated stage. The learned Judge also took the view that the fact that

the matter was disposed of in a regular suit and not in the form of an application as prescribed u/s 9 did not render the decision of the Sub Court a

nullity and that it was merely a matter of form. On the facts of this case we agree with the view taken by the learned judge that the decree of the

learned Subordinate Judge is not a nullity.

We are equally of the opinion that there is no substance in the plea that relief should be refused to the plaintiff on the ground that she had come

to Court after undue delay. This plea again was neither raised in the trial Court not before the learned judge nor even in the grounds of appeal

before us. A perusal of the record shows that the plaintiff has been making all efforts by peaceful means and friendly mediations to induce the

defendant to take her back and that she and her advisers were evidently avoiding coining to Court in the hope that the defendant would see reason

and take her back. Further the plaintiff was aged 25 and the defendant aged 29 at the time of the present proceedings; their respective ages and

their age difference in our opinion amply justify decreeing restitution of conjugal rights.

Learned counsel for the, appellant urged that in the Travancore Child Marriage Restraint Act, 1116, there is a special provision u/s 11 under

which the Government may notify exempting any marriage in Travancore from the operation of the Travancore Child Marriage Restraint Act and

by implication it should be held that if any marriage is not exempted it will be void. There is absolutely no substance in this contention. A perusal of

the provisions of the Travancore Child Marriage Restraint Act clearly shows that a. marriage below a certain age; limit, though prohibited, is not

rendered invalid by any of the provisions therein. It has been held that a contravention of the provisions of the Child Marriage Restraint Act (Indian

Act 19 of 1929) does not render the marriage invalid. We are clearly of the opinion that the same principle applies to marriages in Travancore-

Cochin governed by the Tranvancore Child Marriage Restraint Act, and the provision for exemption u/s 11 does not make any difference

whatsoever.

Lastly learned counsel for the appellant reiterated the same plea that the marriage is invalid on the ground that it took place without the consent

of the appellant''s father. In the first place it must be mentioned that this objection does not appear to have been pressed or urged in. the course of

the trial and not even argued before the trial Court. Jagadisan, J. after an elaborate reference to the case law has held that the marriage cannot be

held invalid for want of proof that the defendant''s guardian consented to the same. We entirely agree with the learned Judge. In the first place it

must be presumed that the marriage took place with the consent of the guardian of the defendant, especially when the objection is raised after such

a long interval. The plaintiff specially alleged in her reply statement that the marriage was conducted with the consent of the defendant''s parents

and elders. Yet, not only no specific issue was raised touching this particular aspect of the matter but the defendant did not even rely upon this

before the trial Court. Under those circumstances we are clearly of the opinion, ''that the defendant ought not to be permitted to raise this plea. As

the law on the point is too clear and well settled it is wholly unnecessary to refer to case law in detail, and it is sufficient to refer to the statement of

the law in Mulla''s Hindu Law, 12th Edn. Section 434 , pages 608 and 609. A marriage once performed and solemnised though it be without the

consent of the guardian, is a valid marriage. For all the reasons mentioned above the appeal is dismissed with costs.