Mallikarjunaiah v. H.C. Gowramma,
AIR 1997 Kant 77: ILR 1997 Kant 964: 1997 (1) Kant 570
Issue: Mallikarjunaiah v HC Gowramma
Is a marriage where parties are below the minimum age requirement under the Hindu Marriage Act void?
Facts: Mallikarjunaiah v. H.C. Gowramma,
A husband sought declaration that his marriage was void on the ground that he had not completed the age of 21 at the time of marriage, as required under section 5(iii) of the Hindu Marriage Act. According to him, he was 20 years, one month and twelve days old when the marriage was solemnized.
The issue whether such marriage was valid, void or voidable was discussed at great length. The trial judge dismissed the husband’s petition as it found no cause of action. In appeal, the arguments raised on behalf of the husband were that section 11 which provides for the grounds for void marriage, should be read with section 5 and any marriage in breach of conditions laid down in section 5 should be declared null and void. It was further contended that the law should not be so interpreted so as to defeat its provisions.
On the other hand, for the wife it was contended that the Legislature specifically excluded section 5(iii) from the purview of section 11 (void marriage), section 12 (voidable marriage) and section 13 (divorce) and this exclusion was neither accidental nor by oversight, but deliberate. After detailed analysis and arguments of law and cases, the court held that such marriage is legal.
The socio-cultural conditions of the society and the consequences of invalidating such marriages, on the girls specially, were highlighted thus:
“Having regard to the strata in which such marriages were likely to take place, the Legislature was cautious of the fact that such provision should not have the result of rendering a large number of girls or young women virtually unmarried or destitute.
The only security that a girl or woman in such a situation is entitled to is within the framework of the marriage and if that marriage can be loosely undone or if it is not recognized by the law, it would result in disastrous social consequences which is the only reason why this section was specifically excluded from sections 11 and 12 of the Act.”
Order: Mallikarjunaiah v. H.C. Gowramma,
The court held that the marriage was not void but valid even though the petitioner-husband had not completed the age of 21 at the time of the marriage. According to the court, the law does seek to discourage marriage of under-age boys and girls but not to the extent of making the marriage void or voidable.
The court, however, suggested that in order to discourage such marriages, there is a need to provide for harsher penalties, particularly for those responsible for it.
Comment: Mallikarjunaiah v. H.C. Gowramma,
The ultimate goal is to completely ban child marriages. However, in view of our socio-cultural conditions, child marriages are rampant in our society. It is only when safety and security of girls against exploitation is assured and a congenial atmosphere built up; when opportunities for education, job and economic security for girls are created along with awareness about the banes of child marriage—
its effect on the couple—girls specially—and their children, is spread, will the incidence of under-age marriage come down. Under the Parsi Law (Parsi Marriage and Divorce Act, 1936) such marriage is not valid (section 3), and under section 24 read with section 4(c) of the Special Marriage Act, 1954, such marriage is void.
See also Gajara Naran Bhura v. Kanbi Kunverbai Parbat, AIR 1997 Guj 185: 1998 (1) MarriLJ 198: 1998 Mat LR 306 where a husband sought to defeat a wife’s claim for maintenance on the ground that the marriage being in contravention of the minimum age requirement was void and so the wife had no right to seek maintenance. The court held that child marriage per se is not invalid nor a nullity unless there has been fraud or force, in which case provisions of section 12(1)(c) of the Hindu Marriage Act would be attracted. Such marriage (child marriage) being valid, the right and obligations that arise of the marriage cannot be avoided by not recognizing the marriage at all.
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