T.R. Arvindam vs Mariam Vauderman

Srinivasachari, J.—This case affords an example of how marital ties are sought to be made in order to overcome and circumvent certain express provisions of law as in this case. it happened that a marriage was sought to be-, solemnised just to be able to get an Indian National''s Certificate and remain here without going back to Pakistan. This is an application u/s 17, Special Marriage Act, seeking for a declaration that the marriage which was solemnised on 3-10-1951 between the Petitioner and one Mariam Vanderman before the Registrar of Special Marriage, Secundera-bad, be declared null and void. The Petitioner alleged in his petition that the Respondent, Mariam Vanderman, was the daughter of one Vanderman, who left India for Pakistan with his daughter. The father stayed away in Pakistan while the Respondent herein returned from Pakistan under a temporary permit. The Petitioner stated that the Respondent who had returned from Pakistan under a temporary permit told him that she was being pressed by the authorities to get back to Pakistan as she had come under a temporary permit and that she did not want to return to Pakistan. He further stated that the Respondent told him that certain friends of hers told her that if she wanted to remain in India permanently, the only course open to her would be to get an Indian National''s Certificate and in order to get the said certificate it would be necessary for her to get herself married to an Indian. The Petitioner further stated that because the Respondent was in a pitiable condition he was moved by her entreaties and he agreed to marry her under the Special Marriage Act in order that her object may be achieved viz. getting an Indian National''s Certificate. It is stated that the Petitioner went before the Registrar of Marriages and assumed the name of ''A. R. Mudaliar'' and made a declaration before the Registrar stating that he was willing to marry the Respondent. The Petitioner and the Respondent made the necessary declaration before the Registrar, the marriage was solemnised and the Registrar granted a certificate u/s 13 of the aforesaid Act. Some days later, it is stated, the Police having come to know that there were some suspicious circumstances surrounding this marriage began to make enquiries and they came to know that the person, A. R. Mudaliar who. is said to have married the Respondent, Mariam Vanderman, under the Special Marriage Act was not A. R. Mudaliar himself but his cousin, the Petitioner. This was disclosed when the police went to investigate about the matter at the house of A. R. Mudaliar. The Petitioner happened to be there and he made an open confession of what had happened.

After this the Petitioner was advised to get the marriage declared null and void and he, therefore, applied to this Court for a declaration that his marriage with the Respondent be declared null and void. These are facts that have been alleged in the petition. Besides alleging these facts, the Petitioner sought to get the marriage declared null and void on the ground that one of the conditions upon which a marriage under the Special Marriage Act could be solemnised not having been conformed to, such a marriage could not be held to be valid, the condition being that where any of the parties to the marriage had not completed the age of 21 years, it was essential that the consent of his or her father or guardian to the marriage should be taken. Admittedly the Petitioner was below the age of 21 years and in this case the consent of the father was not taken.

Notice was taken out to the Respondent and as she could not be served in the ordinary way, substituted service was ordered and when she was absent in spite of the substituted service, she was set ex parte by an order of this Court.

The Petitioner examined in support of his petition, himself, his father and one other. Besides this oral evidence he produced the relevant documents from the office of the Registrar, Special Marriages, the application for admission in the schools in which he studied and the H. Section Certificate granted to him on. his passing the H. Section C. Examination. By the latter documents the Petitioner sought to prove that he was only 18 years. The father of the Petitioner has gone into the box and deposed to the fact that the Petitioner was born on 14-9-1933 and he has stated that he happened to remember the date of birth of the Petitioner well because year after year the Petitioner''s birth day was celebrated on 14th September. The admission application forms to the respective schools have also been proved by the Petitioner''s father and these documents contain the date of birth of the Petitioner as 14-9-1933. We are, therefore, of opinion that it is amply proved from both oral and documentary evidence that the Petitioner was born on 14-9-1933. It would, therefore, follow that on the date of the marriage viz., 3-10-1951, he was 18 years and 2 months old. This is so far as the age of the Petitioner is concerned.

In so far as the other plea is concerned that this marriage was brought about to enable the Respondent to stay in India, permanently, the Petitioner has narrated before us what all happened from the date when the Respondent approached him with the request that he should oblige her by making a farce of marriage before the Registrar agreeing to marry her in order that her object may be achieved till the time he made the application. Ongoing (SIC) the Petitioner''s evidence in detail we (SIC) satisfied that the Petitioner never intended (SIC)marry the Respondent, that no consent of the (SIC)there was taken for this marriage and that (SIC) whole ceremony was gone through in order at the Respondent may get the domicile of (SIC) Petitioner as her husband, who was an (SIC)national It is not necessary for us to (SIC) into the question as to whether this marriage (SIC) be declared null and void on the ground (SIC)at the Respondent never intended to marry (SIC) or on the basis that it was merely a made- (SIC) affair and that both the parties did not (SIC) Into the contract seriously. It would (SIC) for our purposes to declare the marriage (SIC) and void on the sole ground that a very (SIC) condition which is a ''sine qua non'' to (SIC) validity of a marriage where one of the (SIC) happens to be under the age of 21 years, (SIC)as not adhered to. Admittedly in this cose (SIC) Petitioner was below the age of 21 years (SIC) the time of the marriage. Section 2, Sub-section (SIC) Special Marriage Act, 3 of 1872. makes it (SIC) that where any of the parties had (SIC) completed the age of 21 years, consent of (SIC) or her father or guardian should be ob-(SIC) to the marriage. The Petitioner''s father, (SIC) has been stated by us above, has gone into (SIC) box and stated that he never knew about (SIC) marriage until the police came to investi-(SIC) and informed him that it was his son who (SIC) before the Registrar under an as-(SIC) name of ''A. R. Mudaliar''.

The short point now is as to whether the (SIC) of Section 2(3) are mandatory in their (SIC) or merely directory. The object of the (SIC) ture appears to be that a person under (SIC) age of 21 years is not likely to understand (SIC) true import and the necessary consequences (SIC) a marriage and so it has been enjoined that (SIC) consent of the parents who are interested in (SIC) welfare of their children should be obtaln-(SIC) as a very essential safeguard. The Legisla-(SIC) has intentionally fixed the age of 21 years (SIC) a person to enter into a contract of his (SIC) accord without reference to his parents (SIC) regard to the responsible and onerous (SIC) of the marriage contract. The idea is (SIC) it should not be merely a child''s play to (SIC) into a marriage and soon after get it dis-(SIC) at the whim and caprice of any party. (SIC) the words of Sub-section (3) of Section 2 of the (SIC) are (SIC)

each party must, if he or she has not completed the age of 21 years, have obtained the consent of his or her father or guardian to the marriage.

(SIC)words of the Sub-section clearly indicate (SIC) this provision relating to getting the con-(SIC) of the father or guardian where either of (SIC)spouses happens to be under the age of 21 (SIC) is of a mandatory character. If we were (SIC)disregard the words appearing in the Section (SIC)''must have obtained the consent of his or (SIC) father'' - the rights of the parents or the (SIC) would be completely destroyed whore (SIC) children are not in a position to fully (SIC) the consequences of entering into a (SIC) contract. We are of opinion that the (SIC) laid down in Section 2 cannot be regarded (SIC) merely formal but they are conditions on (SIC) fulfillment of which alone a marriage could (SIC) declared to be valid. We are in this conection inclined to follow the decision of the (SIC)High Court In the case of- Basana Sen Vs. Aghore Nath Sen, and are hesitant to follow the decision of the Nagpur High Court reported in - Ganesh Prasad v. Mt. Damayanti AIR 1946 Nag 60 (SB) (B). The trend of decisions In India appears to be In favour of declaring such a marriage null and void as would appear from the judgment of the Punjab High Court reported in - Parbati Mukherjee v. Samarendronath AIR 1951 P&h 88 (SB) (C) and the decision of the Madras High Court in the case of - Jaya Lakshmi v. Soundararajan AIR 1949 Mad 808 (D) and the decision of the Bombay High Court in the case of - Santosh Kumarl v. Chimanlal Munilal AIR 1060 Bora 307 (E).

We may consider the question as to where the marriage is a fait accompli would the doctrine of factum valet govern the case and whether the marriage could not be rendered invalid by reason of the non-fulfllment of the conditions mentioned in Section 2 of the Act. In this connection it would be useful to advert to the observations of the Privy Council in the case of - Balusu Guru Lingaswamy v. Balusu Rama Lakshmamma 26 Ind App 113 at p. 144 (PC) (F), wherein their Lordships observed that the acetum of the external act would not be void In law merely by reason of a directory test not having been complied with, but It would be void only when the mandatory tests are flouted and are not complied with. We have already held that the provisions contained in Section 2(3) are mandatory in their character and where mandatory provisions have not been complied with, such marriage would be void in law and there would be no scope for the application of the doctrine of factum valet. Therefore on the sole ground that a mandatory provision of the law had not been conformed to, we declare the marriage solemnised under the certificate of the Registrar of Special Marriages, between the Petitioner in the assumed name of A. R. Mudaliar and Mariam Vanderman, daughter of one Vanderman, to be null and void. The marriage is dissolved. Ordered accordingly. Having regard to the particular-facts of the pose, we make no order as to costs.

Shripat Rao, J.

I agree.