Kuppuswamy and Others vs Deivathal

S. Nainar Sundaram, J.—This second appeal is directed against the concurrent findings of facts by the two Courts below. Defendants 1 to 3

in the suit are the appellants in this second appeal. The plaintiff in the suit is the respondent. The plaintiff claims herself to be the wife of the first

defendant. The second defendant is the father the third defendant is the mother of the first defendant .The plaintiff laid the suit for separate

maintenance, past and future, as well as for a charge over the plaint schedule properties. The defendants contested the suit stating that there was no

valid marriage between the plaintiff and the first defendant and they also wanted to deny to the plaintiff the relief of maintenance past and future as

well as the charge claimed by her. Requisite issues have been formulated in the first Court and findings have been rendered thereon and the first

Court decreed the suit of the plaintiff for Rs. 1,000 towards past maintenance and for future maintenance at the rate of Rs. 75 per month and Rs.

100 per annum towards clothing and a charge over the plaint schedule properties was also created.

The defendants appealed and there was also a cross-objections by the plaintiff coveting enhancement of the quantum of maintenance. The lower

appellate Court found no warrant for interference both in the appeal and as well as in the cross objection and both were dismissed ; the appeal

with costs and the cross-objection without costs.

At the time of admission of this second appeal, the substantial question of law that was mooted out for consideration runs as follows:

Whether the marriage solemnized in contravention of Section 5(iii) of the Hindu Marriage Act can be taken to be valid and whether one of the

spouses can claim maintenance as against the other?

Section 5(iii) of the Hindu Marriage Act, 1955, hereinafter referred to as the Act, prior to the subsequent amendment, states that a marriage

may be solemnised between two Hindus if the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time

of the marriage.

The first Court held that the first defendant must have been of the age of sixteen years and the plaintiff must have been about the age of fifteen

years at the time of the marriage. I find the lower appellate Court has not disturbed this finding on the question of the respective ages of the parties.

But then the question is whether, on account of the fact that when the marriage was solemnised, the conditions contemplated u/s 5(iii) of the Act

were not fulfilled, the marriage could be held to be void or voidable.

Section 11 of the Act speaks about void marriages, it does not make a marriage solemnised in violation of condition (iii) of Section 5 of the Act

a nullity or a void marriage. Section 12 of the Act speaks about voidable marriage. Even here, there is no reference to condition (iii) of Section 5 of

the Act, the non-satisfaction of which would make the marriage a voidable one. The provisions of the Act as such do not lay down in specific

terms that the violation of condition (iii) of Section 5 would make the marriage void or voidable. It would be a different matter if is pleaded that

consent was obtained by force or fraud. Mr. N. Thiagarajan, learned Counsel for the appellants, frankly concedes that it was not the case of the

defence that the consent of the first defendant was obtained by force or fraud. Such being the position, legal and factual, it is not possible to

characterise the marriage between the plaintiff and the first defendant as invalid so as to disentitle the plaintiff from claiming maintenance as she did

in the suit. Hence the question of law mooted out for consideration has to be answered against the appellants. In this view, the second appeal is

dismissed with costs.