Ramakrishna Jolsian vs Bhaskaran

Govinda Menon, J.—This appeal is against the order passed by the Additional District Judge of Trivandrum in O. P. 1/58 which was a petition filed by the appellant under Sections 18 and 19 of the Hindu Marriage Act. Act XXV of 1955. The appellant''s case was that he is the guardian of his daughter who is aged only 17. It was stated that the respondent was giving tuition to his daughter and that on 16-11-59 while the appellant''s daughter was going to the school, the respondent took her to his house and married her in the presence of various persons. The appellant therefore prayed that the respondent may be punished under Clause (c) of Section 18 of the Act.

The respondent raised a preliminary objection that the petition is not maintainable and has to be dismissed in limine. At the request of the parties this preliminary point was heard by the learned District Judge who held that the petition is not maintainable and dismissed the petition. The appeal is against this order.

Section 18 of the Hindu Marriage Act prescribes the punishment for a person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in clauses (iii), (iv), (v) and (vi) of Section 5. We are concerned in this case only with Clause (vi) of Section 5. Section 5 Clause (vi) lays down that where the bride has not completed the age of eighteen years, the consent of her guardian has to be obtained for the marriage. Section 18 makes the contravention of the conditions specified in Clause (vi) of Section 5 and the solemnisation of such a marriage an offence.

u/s 4 of the Code of Criminal Procedure "offence" means any act or omission made punishable by any law for the time being in force. Section 29 of the Code of Criminal Procedure runs as follows :

(i) Subject to the other provisions of this Code any offence under any other law (that is any law other than the Indian Penal Code) shall, when any court is mentioned in this behalf in such law, be tried by Much court.

(ii) when no court is so mentioned, it may be tried by the High Court or subject as aforesaid by any court constituted under this Code by which such offence is shown in the eighth column of the second schedule to be triable. Schedule 2 of the Code of Crl. Procedure provides that in case of offences against other laws, if the offence is punishable with imprisonment for less than one year or with fine only, any Magistrate cart try it. There is no mention in the Hindu Marriage Act of any court which shall impose punishment provided in Section 18. In other words there is no court mentioned as the court which shall try offences u/s 18. Section 19 of the Hindu Marriage Act does not provide for either trial or conviction of the offences. It makes mention of only petitions under the Act.

The petitions provided by Section 19 are petitions for reliefs specifically made mention of in Sections 9 - 13 and not criminal complaints for any offence which is made punishable under the Act. This is clear from a reading of the entire provisions of the Act and in particular Section 20 of the Act which deals with the contents and verification of petitions referred to in Section 19. It follows therefore that the Hindu Marriage Act not having mentioned any particular court for the trial of offences, the court which can try this offence is the court indicated in the Criminal Procedure Code and Section 19 has no aplication.

Authority for this position is to be found in the decision of a Full Bench of the Lahore High Court in Shia Youngmen''s Association, Punjab v. Fateh Ali Shah ILR (1941) Lah 395: (AIR 1941 Lah 145 ) and Syed Ismail Sahib alias Syed Tahsildar Sahib and Another Vs. Ethikasha Sarguru alias Syed Chandu Sahib and Another, Both the cases were under Mussalman Wakf Act XLII of 1923. There is also tire decision reported in Gowri Thimma Reddy and Others Vs. The State of Andhra Pradesh and Another, which was a case under the Hindu Marriage Act, where a similar question arose for consideration.

Following the decisions mentioned above, we hold that the learned Additional District Judge was right in dismissing the petition as not maintainable and we dismiss this appeal, but under the circumstances without costs.