Bhagwati, J. - (1.)This is a petition filed by the petitioner, a minor by her next friend her father, against the respondent for a declaration that the marriage under the Special Marriage Act III [3] of 1872 alleged to have been solemnized between the petitioner and the respondent on 17th September 1948, is null and void and of no legal effect whatever.
(2.)The petitioner and her father and the whole family came away from Amritsar to Bombay about a year and a half ago owing to the Hindu Muslim riots which took place there after the partition of India. They resided at Shivaji Park, Dadar, in a building by name Usha Nivas, and it was during this period that the incident which is complained about took place. The respondent was their neighbour at Amritsar. He had been employed in the shop of the petitioner's father and is alleged to have rendered them considerable aid in the evacuation of their property and persons from Amritsar when the riots took place. He appears to have renewed his acquaintance with the petitioner and her people here after he himself came down from Amritsar in Bombay. The petitioner's father was looking after his business at Vikhroli where he had a factory for textile printing, and attending to his shop also at Kalbadevi. The mother and the brothers and sisters of the petitioner were no doubt at the house and owing to the familiarity which the respondent had with the petitioner whilst the parties were at Amritsar it appears that the respondent prevailed upon the petitioner or the petitioner being responsive enough to his advances the petitioner and the respondent conceived of the idea of solemnizing a marriage under the Special Marriage Act. With that end in view, they appear to have gone to the office of the Registrar of Marriages and signed a declaration there. The petitioner was known to be a minor and, in any event, a person under the age of 21 years, and that being so, it was necessary that the declaration to be made by the parties should, so far as the petitioner herself was concerned, be signed by her father or guardian. The father's consent was obviously not available and, therefore, a ruse was adopted of putting forward the uncle of the respondent, one Hariram Madanram Kapur, as the guardian of the petitioner. The parties who attended before the Registrar of Marriages were, as it appears from the marriage certificate, the petitioner, the respondent, the so-called guardian of the petitioner and three witnesses who also happened to be the friends of the respondent's uncle Hariram Madanram Kapur. In the office of the Registrar of Marriages was staged a performance which consisted of the signatures of the petitioner and the respondent in the marriage register, the consent given on behalf of the petitioner by Hariram Madanram Kapur who was put forward as her guardian and the signatures of the petitioner and the respondent there were attested by the three friends of Hariram Madanram Kapur who put them forward as the attesting witnesses to those signatures.
(3.)After the marriage was solemnized in this manner before the Registrar of Marriages, the petitioner continued to live as before with her father at Usha Nivas at Shivaji Park Dadar and even though the respondent in the witness box has stated that after the date of the alleged marriage the petitioner used to visit him at his house as also on the streets at Dadar, wherefrom he used to take her to various restaurants and cinemas and outings, there is no allegation before me that the petitioner ever went to reside at the house of the respondent or was received by the near relations of the respondent as his married wife in his house. The respondent also does not appear to have asserted or exercised his rights as a husband and taken away, as he should have normally done so, his wife the petitioner to his own house. Right up to the time that the petition was filed she continued in the house of her father and it was from there that this petition was filed by her through her next friend her father.