Parbati Mukerjee vs Samrendra Nath Rukshit

Bhandari, J.—This is a petition for a declaration of nullity of marriage filed by Smt. Parbati Mukerjee of New Delhi against her husband Samrendra Nath Rakshit on the grounds that she was below 21 years of age on the date of her marriage, that the consent of her father or guardian was not obtained and that the purported marriage is therefore void ab initio. The learned District Judge granted the decree prayed for and has referred the case of the Petitioner to this Court under the provisions of Section 17, Divorce Act. No appearance has been put in on behalf of the husband even though he was duly served.

It is alleged on behalf of the Petitioner that the Respondent who was a private tutor of the Petitioner represented to her that he was holding the post of an Assistant in the Govt. of India and lured her to marry him. The Petitioner being of an impressionable age presented an application to the Registrar of Marriages, Delhi, desiring that she may be married to the Respondent. The matter was kept a closely guarded secret and neither the and father nor the mother nor any of the relations of the Petitioner were informed of the adventure on which she was about to embark. On 20-12-1948 she went through the marriage ceremony with the Respondent under the provisions of the Special Marriage Act. Immediately after the marriage she went back to live with her parents where she was already residing and the Respondent went back to his own house. Parbati''s parents did Dot approve of the marriage and the present suit for declaration was brought on the grounds to which a reference has already been made. The marriage was never consummated.

The first point alleged on behalf of the Petitioner is that she was just a little over twenty years of age on 20-12-1948 and thus obviously a minor when the marriage was performed. Her birth certificate has been produced and it corroborates this allegation. According to this certificate (Ex. R/2) the Petitioner was born on 24-11-1928. This certificate is in a measure supported by the school certificate (Ex. R/1) which shows that on 18-4-1989 she was ten years and five months old. This evidence leaves no doubt in my mind that the age of the Petitioner at the material date is beyond dispute. Indeed, the counsel for the Respondent admitted in the Court below that the Petitioner was in fact below twenty one years of age on the date of her marriage this fact alone is sufficient to invalidate the marriage unless it can be shown that the marriage was performed with the consent of the father.

The evidence which has been produced in this case satisfies me that the consent of the father was not obtained. (After considering evidence his Lordship proceeded:) The Respondent has endeavoured to show that three of his friends who were present at the wedding had obtained the consent of the father but their evidence was not accepted by the learned District Judge and I can see no reason for holding that they are telling the truth.

The question now arises whether the marriage can be annulled on the grounds only that the Petitioner was below 21 years of age on the date of her marriage and that the consent of her lawful guardian was not obtained, it is necessary that parties to a marriage with full understanding of the nature of the contract, should freely consent to marry one another. It follows as a consequence that if one of the parties is unable to understand the nature of the contract the marriage is void. The Legislature appears to think that a person below the age of 21 years is incapable of understanding the nature of the ceremony and it has accordingly enacted that a marriage to which any such person is a party can be dissolved if the Court is satisfied that the consent of the father or guardian has not been obtained. Clause (3) of Section 2, Special Marriage Act provides that:

Each party must, if he or she has not completed the age of twenty one years, have obtained he consent of his or her father or guardian to the marriage.

Section 17 of the said Act is in the following terms:

The Indian Divorce Act shall apply to all marriages contracted under this Act, and any such marriage may be declared null or dissolved in the manner then in provided, and for the causes therein mentioned, or on the ground that it contravenes some one or more of the conditions prescribed in Clause (1), (2), (3) or (4) of Section 2 of this Act.

The language of these two sections makes it quite clear that if a party to a marriage has not attained the age of 21 years and if the guardian''s consent has not been obtained it is open to a Court to declare it to be null and void and that the want of consent of the guardian would justify the annulment of a marriage to which a young person is a party, A certain amount of difficulty has, however, been caused by the decision of the Nagpur High Court in Ganesh Prasad Ramprasad v. Damayanti AIR 1946 Nag 60 in which the learned Judges held that Section 2, Special Marriage Act, does not lay down the conditions of validity but merely prescribes the form which must be filled in to enable the Registrar to marry the parties, that the Divorce Act and as far as may be, the principles of the English law, are to be applied in petitions for dissolution or nullity under the Special Marriage Act, that the minority of one or other of the parties does not in itself invalidate the marriage (though a false declaration to that effect renders the person making it liable to punishment u/s 199, Penal Code) and that if the minor is above the age of consent at the time of the marriage, neither sice can subsequently repudiate the marriage on the mere ground of minority. I regret with all respect that I am unable to endorse this view. The learned Judges appear to have overlooked the plain language of the statute and to have based their decision on certain English cases in which minors have appeared before a Registrar and made false declarations about their age: vide observations of Bell J., in Jayalakshmi v. Soundararajan AIR 1949 Mad. 808 . On the other hand the weight of judicial authority appears to favour the proposition that the marriage of a poison who has not attained the age of 21 years should be annulled if the consent of his or her father or guardian has not been obtained, (vide Basana Sen Vs. Aghore Nath Sen, and Dolly Bathena Vs. Shaik Fazle Ellahi,

For these reasons, I would uphold the order of the learned District Judge and confirm the decree nisi that the Petitioner''s marriage with the Respondent is null and void.

Harnam Singh, J.

I also am of the opinion that the decree nisi passed by the District Judge should be confirmed.

Soni, J.

The witnesses on behalf of the alleged husband tried to show that there was consent implying thereby that the girl was under the age of twenty one. If that was so, the Second Schedule prescribes that the father or the guardian, as the case may be, must sign the statement of the bride. This was not done and there is no manner of doubt that the girl was under twenty one years of age when she was married. I agree with the order proposed by my learned brother and would confirm the decree nisi.