Mt. Jalsi Kuar and Others vs Emperor

Macpherson, J.—These rules have been issued to consider the convictions and sentences of Mt. Jalsi Kuer, Jagnarain Singh and Krishnadev Jha who have been convicted under Sections 6, 4 and 5 respectively of the Child Marriage Restraint Act, 1929, and sentenced to fines of Rs. 100, Rs. 300 and Rs. .100 respectively. The facts found are as follows: Jalsi is a widow who has two daughters of whom the elder Rampa is about seven years old. On the evening of 27th January 1932, Jalsi left home surreptitiously with her two daughters and Bhagwat Dube who is an ague or marriage broker, and proceeded to the village of Kusumbarhanda, a mile from home, where Jagnarain Singh lives. At Jagnarain''s house the marriage of Rampa with Jagnarain was performed by Krishnadev in spite of protests from the complainant Lakhinarain, a close relative of Jalsi''s, deceased husband, who intervened with others of his village and one Ramsaran Singh of Kusumbarhanda.

It was found that Jalsi, the person-having charge of the minor Rampa as parent, took the child to Jagnarain''s house and promoted a marriage or permitted a marriage to be solemnised between Rampa and Jagnarain, a man who gave his age as twenty four but who on the evidence is much older, and that Krishnadev was the priest who conducted the child marriage between the contracting parties in the courtyard of the bridegroom''s house. The Courts below have negatived the defence that a marriage did not take place and the mendacious plea of enmity advanced by the male petitioners. In support of the rule Mr. Lakshmi Kant Jha has raised the two pleas, first, that a marriage has not been proved; and, secondly, that the enactment mentioned is invalid.

In respect of the marriage, it is urged that the saptbedi is not held to have taken place. But although there is no mention of that special part of the ceremony, it is, as the learned Sessions Judge has observed, quite clear upon the evidence as a whole that all the essential ceremonies were duly performed up to the sinduran, at which Jalsi on whose lap Rampa was sitting, handed some sindur to Jagnarain who then applied it to the forehead of Rampa. The plea is on the evidence unfounded.

The second contention is that the Child Marriage Restraint Act is ultra vires of the legislature inasmuch as u/s 67(2)(b) of the Government of India Act (5 and 6 Geo. V Ch. 61 and 9 and 10 Geo. V. Ch. 101). "it shall not be lawful, without the, previous sanction of the Governor General in Council, to introduce at any meeting of either chamber of the Indian Legislature any measure affecting . . . . (b) the religion or religious rules and usages of any class of British subjects in India," and such previous sanction was not given to the introduction of the measure which became the Child Marriage Restraint Act, 1929. The argument is that though the first Bill introduced was merely one

to regulate marriages of children amongst the Hindus

by providing that no marriage of a Hindu girl or a Hindu boy should be valid unless the former had completed , her twelfth and the latter his fifteenth year (with certain exceptions in regard to girls between the age of eleven and twelve), yet the Select Committee on that Bill having accepted a suggestion

that:

The Bill should effect its purpose of restraining child marriages, not by declaring such marriages to be invalid, but by imposing punishments upon those who participate in them

recast it out of all semblance of the original Bill to which previous sanction had been given, not only by changing the method of restraining'' child marriages but by making the measure applicable to all classes and communities in British India, with the result that a new measure emerged in respect of which the previous sanction accorded u/s 67(2)(b) to the original Bill, wherein there was no penal provision and which applied only to one religion, could not possibly be applicable.

Now it may be assumed that the restraint of child marriage affects the religious usages of a class of British subjects designated as the Hindus. The contracting parties here being Rajputs, are unquestionably Hindus of high caste and therefore came within the scope of the original Bill. So far as they and other members of the class of the Hindus are concerned, it is difficult to discern any substantial difference between the object of that Bill which was professedly to regulate child marriage amongst the Hindus and the object of the child marriage measure passed into law, the preamble of which sets out that it is expedient to restrain child marriages. The methods of achieving the purpose do indeed differ but the fact that in the one case the object was to be effected by imposition of a civil disability while in the other it is effected by imposition of penalties, does not appear to possess any significance so far as Section 67(2)(b) is concerned, the essential point in which is that the religious usages are affected.

Other considerations adverse to the argument are available to the Crown but they need not be discussed. The case of Hindus alone arises for decision here and so far as it is concerned, it is safe to hold that the changes introduced in the Select Committee were not such as to render inadequate the "previous sanction" accorded by the Governor-General or the introduction of the all unlawful. The second plea cannot prevail.

The Court observe with some surprise that the learned Sessions Judge actually reduced the sentence passed u/s 5 upon the priest who performed or conducted the child marriage. The Courts are not at liberty to treat this enactment as a legislative imposture and manifestly, if it is to be effective, the sentence upon the priest or other celebrant without whose aid ordinarily no infringement of the Act is possible, should be such as to deter other avaricious members of his caste from following his example. The applications fail and the rules are discharged.