THAMBAYI & OTHERS Vs. KOTTAN
LAWS(KER)-1963-11-35
HIGH COURT OF KERALA
Decided on November 29,1963

Thambayi And Others Appellant
VERSUS
KOTTAN Respondents


Referred Judgements :-

RAM BARAN UPADHIYA VS. SITAL PATHAK [REFERRED TO]
MOTI VS. BENI [REFERRED TO]
MUNSHI RAM VS. EMPEROR [REFERRED TO]


JUDGEMENT

Anna Chandy, J. - (1.)THE respondent complained to the Sub -Divisional Magistrate, Hosdrug that the first petitioner (first accused) Vanisthy Thambayi whom he had married some three years ago and who was living with him as his wife was taken away to her parent's house and given in marriage a second time. He charged his wife with bigamy and her bride -groom, her parents and her new father -in -law with abetment of the crime. The defense case was one of total denial. According to the accused Thambayi a young girl of 13 was never married to anyone. The trial court found that both marriages were proved and accordingly convicted Thambayi under Section 494 I. P. C. and her parents under Section 494 read with Section 109. Sankaran her second husband and his father were acquitted on the ground that they might have been unaware of the subsisting marriage. Thambayi was released under section 25(1)(a) of the Madras Children Act after admonition, accused 3 was sentenced to simple imprisonment for three months and to pay a fine of Rs. 100/ -. In appeal while confirming the conviction the learned Sessions Judge altered the sentence of imprisonment in respect of accused 3 to a fine of Rs. 200/ -. As a sentence of imprisonment is compulsory in the case of bigamy notice was issued from this Court to accused 3 and 4 to show cause why the sentence of fine may not be altered into one of imprisonment. As this gave them an opportunity to challenge the correctness of the conviction on the facts the entire evidence was considered. The first marriage is proved by the evidence of P. Ws. 1 to 3 and the subsequent one by witnesses 4 and 5. The first marriage took place on the 20th of Vrischigom 1136 in the house of the third accused in accordance with the customary ceremonies. The complainant described in detail the ceremonies. His evidence is fully corroborated by P. W. 2 who was the 'Moonaman', P. W. 3 one of the eleven who formed the bride -groom's party. No circumstance is brought out to doubt the veracity of this evidence. It is seen from the judgment that the first marriage was not challenged at all before the appellate court. P. Ws. 4 and 5 have given convincing evidence about the second marriage. Both of them are neighbors of the third accused who were invited by accused 3 for the marriage. They give a consistent version of the marriage ceremonies. Their evidence is attacked on the ground that they had worked with P. W. 1 for tarring a road at Hosdrug. They as well as several others were employed by the same contractor for the work and that is no reason why they should give false evidence to oblige a co -worker. Both the marriages are well proved.
(2.)THE only other ground urged before us is that the girl beings under -age, her marriage to the complainant was void and as such she does not commit bigamy in marrying a second time.
Both the parties are Hindus and it is admitted that the Hindu Marriage Act 1955 applies to them. Section 5 of the Act provides:

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely, -

(i) neither party has a spouse living at the time of marriage;

(ii) neither party is an idiot or a lunatic at the time of marriage;

(iii) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

(vi) where the bride has not completed the age of eighteen years, the consent of her guardian in marriage, if any, has been obtained for the marriage.

There is no dispute that at the time of her first marriage Thambayi was below the age of 15. The question before us therefore is as to the effect of the, non -fulfillment of condition No. 3 on the validity of the marriage. Section 11 of the Act lays down that marriages in contravention of conditions 1, 4 and 5 are void and Section 12 provides that where condition No. 2 is contravened or where consent of the petitioner or the petitioner's guardian as contemplated in condition 6 was obtained by fraud the marriage is voidable. It is thus seen that the Act is silent regarding the effect of the contravention of condition No. 3. The learned counsel for the respondent takes the straightforward position that as the Act does not declare such a marriage either void or voidable, it must be valid. On the other hand the learned counsel for the petitioners contends that since conditions are prescribed for a valid marriage, any marriage which does not satisfy those conditions is no marriage at all. This argument loses sight of the fact that the Act itself makes a distinction between conditions the infraction of which renders a marriage void ab initio and conditions which if contravened will only result in the marriage being voidable i.e. the marriage is perfectly valid until declared otherwise under certain circumstances. It is further argued that the girl being a minor and incompetent to enter into any contractual obligation cannot also be a party to a valid marriage. This contention also cannot be accepted for apart from the position that a Hindu marriage is a sacrament and not a contract there is also the fact that the Act itself recognizes the right of minor girls to marry. The minimum age for marriage is prescribed as 15 and as even at this age the girl is incompetent to contract, the argument that the accused being only 13 and a minor cannot enter into a valid marriage has to fail. Yet another argument advanced by the learned counsel is that since "procuring one's marriage" while under -age is penalized by the Act, such a marriage is illegal and therefore a nullity. According to him the failure to declare such a marriage void may be an inadvertent omission by the Legislature. We cannot find our way to accept this contention also. The omission seems to be purposeful. The underlying policy is apparently to prohibit child marriages by making it an offence but at the same time to save the marriage itself if in spite of such deterrence it has taken place. The Child Marriage Restraint Act of 1929 - an Act specially intended to stop child marriages -also does not declare such a marriage void though it is penalized. The position under the Child Marriage Restraint Act has been made clear in a number of reported decisions (vide Munshi Ram v. Emperor - : A. I. R. 1936 All 11, Moti v. Beni - : A. I. R. 1936 All 852 and Ram Baran v. Sital Pathak - : A. I. R. 1939 All 340). It is therefore clear that under the Hindu Marriage Act a marriage in which the girl has not attained the age of 15, is, though in contravention of one of the conditions of a Hindu Marriage, nevertheless a valid marriage. Hence if the girl marries again while the first marriage is subsisting, she commits bigamy. The conviction, therefore has only to be confirmed. As for the sentence we take a lenient view as the marriage has taken place as early as on 10 -5 -1961. The third accused Kunhambu is said to be an old man of 65. He is therefore sentenced to suffer simple imprisonment for one month under Section 494 read with Section 109 I. P. C. The fourth accused is sentenced to suffer simple imprisonment for one month under Section 494 read with section 109 I. P. C.

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