JUDGEMENT
Pandrang Row, J -
(1.)This is an appeal from the acquittal of three of the accused in C.C. No. 29 of 1935 on the file of the District Magistrate of Kistna. The acquittal of these accused was ordered by the Sessions Judge of Kistna in Criminal Appeal No. 16 of 1936. The offences charged were Under Secs.5 and 6, Child Marriage Restraint Act (19 of 1929). These three accused were accused 3, 4 and 5 in the trial Court. Accused 3 and 4 were the parents of the bridegroom and accused 5 was the priest who solemnized the marriage, which is alleged by the prosecution to be a child marriage. The case for the prosecution was that the bridegroom was under 18 years of age and the bride under 14 years of age when the marriage was solemnized on 7th February 1935. Accused 1 and 2 were the parents of the bride and their convictions were upheld in appeal. Accused 6 was another priest who was said to have solemnized the marriage. He was acquitted on appeal, but there has been no appeal so far as his acquittal is concerned.
(2.)The learned District Magistrate in his judgment refers to the conflict of authority as to the question whether the parents are liable Under Section 5 or Section 6 or under both these sections of the Child Marriage Restraint Act, the decisions he refers to being those reported in Gaupatrao V/s. Emperor AIR 1932 Nag 174 and Munshi Ram V/s. Emperor AIR 1936 All 11. The District Magistrate followed the decision in the Nagpur case to the effect that Section 6 alone applies to the case of parents. This view in my opinion is right and the criticism of the learned Sessions Judge does not appear to be sound. Apart from the marginal notes which are relied upon in the Nagpur case there is the proviso to Section 6 that no woman shall be punishable with imprisonment under that section which indicates that it is this section, namely Section 6, that is applicable to parents; the absence of such a proviso to Section 5 indicates that it was not meant to apply to parents. Further, the concluding words of Section 5 which throw upon the accused person the burden of proving that he had reason to believe that the marriage was not a child marriage, seem to show that this burden would not have been thrown by the Legislature on the parents who must know the age of their own child. The view therefore that Section 5 applies only to solemnization of marriage by others than parents appears to be correct and it follows therefore that Section 6 alone applies to parents who promote a child marriage or permit it or negligently fail to prevent it. It is not disputed that accused 3 and 4 who are the parents of the bridegroom cannot be convicted Under Section 6 merely because the bride was under 14 years, and that they can be convicted, if at all, Under Section 6, only if the bridegroom, that is their own son who was in their charge was under 18 years at the time of the marriage. The only question therefore that arises is whether the bridegroom was under 18 years of age, or in other words, a child as defined in the Act at the time of the marriage.
(3.)The District Magistrate appears to have relied mainly on the alleged admission of accused 3 in his statement during the trial in which his wife, accused 4, joined, to the effect that the bridegroom had not completed his 18 year at the time of marriage. The learned Sessions Judge points out that the District Magistrate was misled by a wrong translation of the statement of accused 3 in Telugu. The learned Sessions Judge does not say what the correct translation is, and on the other hand, make a mis-statement of fact when he says that there is absolutely no evidence that the bridegroom was under the age of 18 years. As a matter of fact there is the evidence of P.W. 1 to the effect that the bridegroom was 17 years old at the time of the marriage and this evidence was not attacked in cross-examination. The learned Sessions Judge must have completely lost sight of this evidence of the age of the bridegroom, for otherwise it is impossible to believe that he would have said that there is absolutely no evidence on the point. I have looked into the statement made by accused 3 in Telugu and I cannot say that the learned District Magistrate was clearly wrong in interpreting the last sentence in the statement to mean that the son had not completed 18 years. The last sentence really means that the son was just 18 years old. It may be that this was with reference to his age at the time the statement was made. Apparently the District Magistrate took it to mean that accused 3's son had just attained 18 years when accused 3 made the statement. If so he was right in coming to the conclusion that there was an admission to the effect that the bridegroom had not completed his 18 years at the time of the marriage because the statement was made very nearly a year after the marriage.
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