A.N. Bhandari, J. - (1.) THIS second appeal raises an interesting question as to whether a widow who alienates ancestral property with the object of solemnising a marriage in contravention of the provisions of the Child Marriage Restraint Act can be said to make the alienation for a necessary purpose. The following pedigree table shows the relationship between the parties: JAUHRI | ___________________________ | | Jaswant Kanhayia | | Atma Ram=Mt. Amri | ______________ | ___________________________________ | | | Tula Ram Hira Lal Shadi=Mt. Amri | ________________________________ | | | Shanti (8) Vidya (12) Satya (16) (Daughters). On the death of Atma Ram, his widow Mt. Amri remarried her husband's cousin Shadi, brother of Hira Lal and Tula Ram Shadi died in or about the year 1940 and on 30 -10 -1944, Mt. Amri mortgaged a plot of land measuring 15 tighas 18 biswas situate in village Khetpurali with one Siraj -ud -Din for a sum of Rs. 1,500. On 20 -11 -1944, Hira Lal and Tula Ram brothers of Shadi brought a suit (a) for a declaration that the alienation was void for want of consideration and necessity and could not be allowed to operate to the prejudice of the Plaintiffs and (b) for the issue of an injunction restraining Mt. Amri from making further alienations of property. It was alleged in the plaint that Mt. Amri was a woman of wasteful habits who was parting with the property of her husband Shadi to the detriment of the lawful heirs. The trial Court granted the decree prayed for on the ground that the alienation made by Mt. Amri with the object of solemnising the marriages of her two daughters (one of whom was aged 12 and the other aged 8) in contravention of the provisions of the Child Marriage Restraint Act could not be regarded as having been made for a necessary purpose. The Senior Subordinate Judge, however, came to a contrary conclusion. He held that the sale of land for the purpose of celebrating the marriage of a daughter is regarded as a legal necessity under the Customary Law and consequently that Mt. Amri was justified in making the alienation the validity of which was being impugned. The Plaintiffs, have come to this Court in second appeal and the question for this Court is whether the Senior Subordinate Judge has come to a correct determination in point of law.
(2.) IT is common ground that on 30 -10 -1944, Mt. Amri mortgaged the plot of land with Siraj -ud -Din for a sum of Rs. 1500 in order to celebrate the marriages of her two daughters which were fixed for 16 -11 -1944. The only question which arises for consideration is whether the money which was advanced by Siraj -ud -Din was advanced for necessary purpose. Section 5, Child Marriage Restraint Act, provides that a person who performs, conducts or directs any Child Marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage. The expression "child" as defined in Section 2 means a person who, if a male, under eighteen years of age, and if a female, is under fourteen years of age. It seems to me, therefore, that if Mt. Amri had married her daughters aged 12 and 8 on 16 -11 -1944 as proposed by her, her act would have been tantamount to the commission of a criminal offence. If the Legislature declares in explicit terms that no one shall be a party to the solemnisation of a child marriage, it is obvious that when Siraj -ud -Din advanced money for the solemnisation of the marriages of these two girls he was facilitating the commission of a crime. The money which was advanced by him could not, therefore, be regarded as having been advanced for a necessary purpose. As pointed out by Harnam Singh J. in Ghulam Bhikh v. Rustom Ali, A.I.R. 1949 E.P. 354, a sum advanced for the marriage expenses of a child being one for the performance of an act which constitutes an offence under the Child Marriage Restraint Act, 1929, cannot be treated as one covered by legal necessity under the rule of custom. For these reasons, I entertain no doubt whatever that the learned Senior Subordinate Judge was not justified in upholding the alienation on the ground that it was made for a necessary purpose. I would accordingly accept the appeal, set aside the order of the lower appellate Court and decree the Plaintiffs' claim to the extent that they will be granted the declaration prayed for. The Plaintiffs will be entitled to costs as against Siraj -ud -Din. The suit for the -issue of an injunction restraining Mt. Amri from making further alienations of the property must be dismissed with costs. I would order accordingly.;