HANSRAJ BHUTERIA Vs. ASKARAN BHUTERIA

JUDGEMENT

(1.) This is an application by the plaintiffs for liberty to spend out of the estate, which is being administered by this Court, a sum of Rs. 25,000 to meet the marriage expenses of the plaintiff, Hansraj Bhuteria. The plaintiff is a minor who has not yet reached the age of 16 years. Apparently both the plaintiff Hansraj and his prospective bride are domiciled in Bikanir. The sagai ceremony has taken place in Bikanir, and the marriage ceremony is due to take place at Sujangarh in Bikanir on 12 June 1940. The application is opposed by the executors to the estate. They point out that the marriage would not be valid in India owing to the provisions of the Child Marriage Restraint Act. They also point out that even under the Bikanir Hindu Marriage Act, 1928, the plaintiff will be a minor under the definition contained in Section 2 of that Act, in that he will not have completed his 16 year until 29 June 1940, and the marriage is to be performed on 12 June 1940.

(2.) The question whether the Court should allow money to be withdrawn for purposes of a marriage, which the Legislature in British India has made penal, has been considered by this Court in Panmull Lodha V/s. Gadhmull Lodha . The facts there were somewhat different because there were no materials in that case to show whether the members of the family were subjects of an Indian State or whether they were domiciled in an Indian State. In the present instance it seems quite clear that the parties are subjects of and domiciled in the State of Bikanir. On the other hand, the business, which is the main source of income and which comprises most of the assets, is carried on in Howrah and Calcutta. The parties are ordinarily resident in Howrah, and the suit in which this application is made is an administration suit which has been brought in this Court. In the concluding portion of his judgment in Panmull Lodha V/s. Gadhmull Lodha Panckridge J., said: Even assuming that the parties to the intended marriage are not British subjects and are domiciled out of British India, it would surely be wrong in principle for the Court to cilitate conduct which the Legislature has made penal as being socially injurious, on the ground that the promotion of the contemplated marriage is not punishable by the law of the place where it is proposed to celebrate it.

(3.) It is argued that that statement by the learned Judge was not essential for the decision in the case before him, because it was not established that the parties to the intended marriage were subjects of an Indian State. The principle however remains. In the present instance this application should in my opinion be dismissed. Even on the applicant's own showing the plaintiff, for whose marriage the money is sought, will not have completed his 16 year at the time the marriage is due to be celebrated, and the contemplated marriage would therefore be a penal offence under the Bikanir Hindu Marriage Act. Learned Counsel for the applicant states that he is willing to give an undertaking that the marriage will not be performed until the plaintiff had completed his 16 year. Even in that event, considering the. facts which I have mentioned, namely the, ages of the parties, the boy being not quite 16 and the girl being only 12, the parties being ordinarily resident in British India, and the property being entirely in British India, the principle referred to by Panckridge J., in 63 Cal 11531 seems to me to be applicable, and the Court should not facilitate conduct which the Legislature in British India has made penal. The application is dismissed. Costs of all parties as between attorney and client to come out of the estate. Certified for counsel.