Option Of Puberty Under Hindu Law

Marriage in contravention of 5(iii) is neither void nor voidable BUT

divorce can be granted at instance of wife (Option of Puberty)
AIR 1977 AP 43
IN THE HIGH COURT OF ANDHRA PRADESH
Criminal Revn. Case No. 190 of 1975, Criminal Revn. Petn. No. 189 of 1975 and
Criminal Misc. Petn. No. 809 of 1976
Decided On: 09.08.1976
Appellants: Pinninti Venkataramana and Anr.
Vs.
Respondent: State
Hon'ble
B.J. Divan, C.J., Alladi Kuppuswami and Muktadar, JJ.

Judges:

Counsels:
For Appellant/Petitioner/Plaintiff: A. Surya Rao and A Lakshminarayana, Advs.
For Respondents/Defendant: Y. Bhaskara Rao and G. Venugopal Rao, Advs.
Subject: Family
Catch Words
Mentioned IN
Acts/Rules/Orders:
Hindu Marriage Act, 1955 - Section 5 , Hindu Marriage Act, 1955 - Section 11 , Hindu
Marriage Act, 1955 - Section 12, Hindu Marriage Act, 1955 - Section 18, Hindu
Marriage Act, 1955 - Section 13(2); India Penal Code, 1860 - Section 109, India Penal
Code, 1860 - Section 494; Marriage Laws (Amendment) Act, 1976 - Section 18(2)
Case

Note:

(i) Family void and voidable marriage Sections 4, 5, 11, 12, and 13 (2) of
Hindu Marriage Act, 1955, Sections 109 and 494 of Indian Penal Code, 1860
and Section 18 (2) of Marriage Laws (Amendment) Act, 1976 parties to
marriage below their respective ages as set out in Hindu Marriage Act
whether a Hindu marriage where parties to marriage or either of them are
below their respective ages as per Section 5 is void ab initio and is no
marriage in eye of law held, any marriage solemnized in contravention of
Clause (iii) of Section 5 is neither void nor voidable and only consequence
being that persons concerned are liable for punishment under Section 18 in
case if requirements of Clause (iv) of Sub-section (2) of Section 13 are
satisfied a decree for divorce can be granted at instance of wife.

(ii) Doctrine of factum valet marriage of Hindu minor cannot be held invalid
for want of proof of guardian's consent.

JUDGMENT
B.J. Divan, C.J.
1. Since both these matters raise a common point of law, both of them have been
placed before the Full Bench for deciding the following question:

"Whether a Hindu Marriage governed by the provisions of the Hindu Marriage

Act, 1955 where the parties to the marriage or either of them are below their
respective ages as set out in Clause (iii) of Section 5 of the Hindu Marriage Act,
is void ab initio and is no marriage in the eye of law."
In Crl. R.C. of 1975, the facts of that the petitioner No. 1 was convicted by the Judicial
First Class Magistrate, Rajam for an offence punishable under Section 494I.P.C. And
petitioner No. 2 was convicted for an offence punishable under Section 494 read with
Section 109, I.P.C. Both of them filed appeals and the appellate Court confirmed the
convictions of both the petitioners, but modified their sentences to that of payment of
Rs. 200/- and in default of payment of fine, each of the petitioners was sentenced to
undergo rigorous imprisonment for one month. Against their convictions and
sentences, the petitioners came by way of revision to this High Court.
2. When the revision application came up before one of us (Muktadar, J.) on behalf of
the petitioners, reliance was placed on the judgment of the Division Bench of this
Court in P.A. Saramma v. G. Ganapatulu ( MANU/AP/0106/1975 : AIR1975AP193 ). In
that case, the Division bench has held that a marriage, which is in contravention of
Clause (iii) of Section 5 of the Hindu Marriage Act is void ab initio and is no marriage in
the eye of law. Since it was felt that the view taken by the Division Bench was not in
accordance with the provisions of the Hindu Marriage Act, the matter was referred to a
larger Bench. Thereafter, the matter came up before Chinappa Reddy and Punnayya,
JJ. And, by their order dated March 22, 1976, they referred the matter to a Full Bench
and thereafter the matter has come before us.
3. In Criminal Miscellaneous Petition No. 809 of 1976, the Ist Petitioner is the husband
and others are co-accused with him in a complaint filed by the Ist respondent-wife in
the Court of the Judicial First Class Magistrate , Siddipet, Medak District. The Ist
respondent in this criminal miscellaneous Petition filed a criminal complaint, C.C. No.
323 of 1976, in the Court of the Judicial First Class Magistrate, Siddipet, against her
husband (Ist petitioner) and ten others alleging that her husband had committed an
offence punishable under Section 494 of the Indian Penal Code and that the other
accused had committed an offence punishable under Section 494read with
Section 109 I.P.C. According to the petitioner in this petition at the time of the
marriage i.e. in the year 1959 he was 13 years of age and the Ist Respondent was 9

years of age. The husband contends that in view of the decision of the Division Bench
of this Court in P.A. Saramma v. G. Ganapatulu MANU/AP/0106/1975 :
AIR1975AP193 , the marriage between him and the Ist respondent was void ab initio
and no marriage in the eye of law and hence the action of the Ist petitioner in
marrying a girl did not amount to an offence punishable under Section 494. Under
these circumstances in this criminal miscellaneous petition, the petitioners have
prayed that the prosecution in C.C. No. 323 of 1976 on the file of the Judicial First
Class Magistrate, Siddipet, be quashed. Since the question involved in this criminal
miscellaneous petition is the same as the one raised in Criminal Revision Application
No. 190/75, which stood referred to a Full Bench, this Criminal miscellaneous petition
was also directed to be posted along with the criminal revision application. It is under
these circumstances that both these matters have been heard together by this Full
Bench.
4. In order to appreciate the rival contentions in these cases, it is necessary to refer to
some of the provisions of the Hindu Marriage Act, 1955. The preamble of the Act
shows that it is an Act to amend and codify the law relating to marriage among
Hindus. Section 4 provides:

'Save as otherwise expressly provided in this Act(a) any test, rule or interpretation of Hindu law or any custom or usage as part
of that law in force immediately before the commencement of this Act shall
cease to have effect with respect to any matter for which provision is made in
this Act;
(b) any other law in force immediately before the commencement of this Act
shall cease to have effect in so far as it is inconsistent with any of the
provisions contained in this Act."
It is well settled law that the old Hindu Law, as it prevailed prior to the enactment of
the Hindu Marriage Act is to continue in force except to the extent to which that law
was altered by the provisions of the Hindu Marriage Act, 1955. It is in the light of this
well settled principle that arises for our consideration.
5. Section 5 lays down the conditions for a Hindu marriage and it is in these terms:

"A marriage may be solemnized between any two Hindus, if the following
conditions are fulfilled namely;
(i) neither party has a spouse living at the time of the marriage;
(ii) neither party is an idiot or a lunatic at the time of the marriage;
(iii) the bridegroom has completed the age of eighteen years and the bride the
age of fifteen years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship, unless the
custom of usage governing each of them permits of a marriage between the
two;
(v) The parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two
(vi) where the bride has not completed the age of eighteen years, the consent
of her guardian in marriage, if any, has been obtained for the marriage."
Section 11 lays down as to when marriages governed by the Act are to be considered
void marriages. It is in these terms:

"Any marriage solemnized after the commencement of this Act shall be null and
void and may, on a petition presented by either party thereto, be so declared by
a decree of nullity if it contravenes any of the conditions specified in clauses (i),
(iv) and (v) of Section 5".
It is thus clear that , by virtue of Section 11, any marriage which is solemnized in
contravention of any of the conditions specified in clauses (i), (iv) and (v) of
Section 5 is null and void and if a Court of competent jurisdiction is called upon to
make a pronouncement , the Court may, on an application presented by either party to
the marriage, declare such a marriage to be null and void. Thus, out of the six clauses
of Section 5, it is only in connection with clauses (i), (iv) and (v)of Section 5 that the
Legislature has declared that the contravention of any one of the conditions mentioned
in those three clauses will render the marriage null and void.
6. Section 12 of the Hindu Marriage Act deals with voidable marriages. Sub-section (1)
provides that any marriage whether solemnized before or after the commencement of
the Act, shall be voidable and may be annulled by a decree of nullity on any one of the
grounds specified in clauses (a) to (d). Clause (b) of sub-section (1) provides that, if
the marriage is in contravention of the condition specified in clause (i) of Section 5,
the marriage shall be voidable and may be annulled by a decree of nullity. Clause (c)
provides that, if the consent of the petitioner or where the consent of the guardian in
marriage of the petitioner is required under Section 5, the consent of such guardian
was obtained by force or fraud, the marriage may be annulled by a decree of nullity.
Clause (ii) of Section 5 requires that neither party is an idiot or a lunatic at the time of
the marriage and clause (vi) provides that, where the bride has not completed the age
of eighteen years, the consent of her guardian in marriage, if any, has to be obtained.
7. Now the following points of distinction between Sections 11 and 12 have to be
noted: (1) Section 11 applies only to marriages solemnized after the commencement
of the Hindu Marriage Act; whereas Section 12(1) applies to any marriage whether
solemnized before or after the commencement of the Act and (2) whereas violation of
the provisions of Clauses (i) (iv) and (v) of Section 5 renders the marriage null and
void, violation of the different clauses of Section 5mentioned in Section 12(1) renders
the marriage voidable and if the requirements of one or the other clauses of
Section 12 are satisfied, the marriage may be annulled by a decree of nullity of a
Court having competent jurisdiction. Now, it is worth noting that violation of clause (ii)

of Section 5 renders the marriage voidable and not null and void. Though, under
clause (vi) of Section 5, in case the bride has not completed the age of eighteen years,
the consent of her guardian is obtained it is not the absence of the consent of the
guardian that renders the marriage voidable, but it is only when the consent of the
guardian in marriage, which is required under Section 5, is vitiated by force or fraud
that the marriage is liable to be annulled by a decree of nullity on the ground that it is
voidable. Even though none of the clauses of S. 5 refers to the requirement of consent
of the petitioner, it is only if the consent of the petitioner before the court is vitiated by
force or fraud that the marriage becomes voidable and liable to be annulled by a court
of competent jurisdiction. It is thus clear that neither in Section 11 nor in Section 12 is
there any provision for what is to happen if the condition regarding the ages of the
parties to the Marriage, by clause (iii) of Section 5, is violated in any particular case.
When the provisions of Sections 11 and 12 of the six clauses of Section 5, violation of
Clauses (i) (iv) and (v) renders the marriage null and void, whereas violation of clause
(ii) renders the marriage voidable. Violation of the guardian in marriage has been
obtained by force or fraud, again renders the marriage voidable. But neither in
Section 11 nor in Section 11 nor in Section 12 is there any provision for what is to
happen if a marriage is solemnized in violation of the provisions of clause (iii) of
Section 5.
8. It is true that the opening of Section 5 would indicate that each one of the six
clauses can be construed as laying down a condition precedent for solemnization of
marriage. However, the legislature has given an indication in Section 11 that it is only
contravention of clauses (i) (iv) and (v) of S. 5 that renders the marriage void ab initio
i.e. null and void and the Court may subsequently declare the marriage null and void
by a decree of nullity if either party chooses to present a petition in that behalf. The
Legislature has also indicated that a marriage solemnized in contravention of clause
(ii) of Section 5 does not render the marriage null and void, but renders it voidable
and liable to be annulled by a decree of nullity; whereas if the bride has not completed
the age of eighteen years, it is not the absence of the consent of the guardian in
marriage that renders the marriage voidable and liable to be annulled, but it is only if
the consent of the guardian was obtained by force or fraud, in a case governed by
clause (vi) of Section 5 that the marriage becomes voidable and liable to be annulled
by a decree of nullity. Thus the scheme of the Act is that it is not the violation of any
one of the six conditions in Section 5 that renders the marriage null and void or
voidable but it is only the violation of clauses (i) (iv) and (v) which renders the
marriage null and void. Violation of clause (ii) renders the marriage voidable and
violation of clause (vi) ipso facto does not render the marriage voidable, but it is only
when the consent of the guardian, is obtained by force or fraud, that the marriage
becomes voidable. In view of the scheme of the Act, we have to examine as to what
are the consequences of violation of clause (iii) since the legislature , in terms has not
provided for what is to happen in case of violation of clause (iii) of Section 5. The only
indication that is to be found in the Hindu Marriage Act is in Section 18, which provides
punishment for contravention of certain conditions laid down for bigamy, and that
section is in the following terms:
Every person who procures a marriage of himself or herself to be solemnized under
this Act in contravention of the conditions specified in clauses (iii) (iv) (v) and (vi) of
Section 5 shall be punishable -

(a) in the case of a contravention of the condition specified in clause (iii) of

Section 5, with simple imprisonment which may extend to fifteen days, or with
fine which may extend to one thousand rupees , or with both;
(b) in the case of contravention of the condition specified in clause (iv) or
clause (v) of Section 5 with simple imprisonment which may extend to one
month, or with fine which may extend to one thousand rupees, or with both;
and
(c) in the case of a contravention of the condition specified in clause (vi) of
Section 5 with fine which may extend to one thousand rupees."
But violation of clause (i) of Section 5, which requires that neither party has a spouse
living at the time of the marriage is punishable not under Section 18, but under
Section 17, which provides that any marriage between two Hindus solemnized after
the commencement of the Act is void if, at the date of such marriage, either party had
a husband or safe living ; and the provisions of Sections 494 and 495 of the Indian
Penal Code shall apply accordingly. It is noticeable that, in case of contravention of
clause (i) both Section 17 and Section 12 provide that the marriage is void, but
Section 17 further provides for punishment for such contravention. Thus, the
Legislature has not thought fit to provide for any punishment for contravention of
clause (ii) of Section 5.
9. This analysis of the different provisions of the Hindu Marriage Act clearly brings out
the fact that the Legislature itself has made a distinction between contravention of one
or the other clauses of Section 5 and such contravention is to be visited with different
consequences. In case of contravention of some clauses, the marriage is null and void
and in case of contravention of some other clauses, it becomes voidable and in case of
contravention of another clause, it is voidable if the consent of guardian is vitiated by
force or fraud; but the Legislature in terms has not provided except by way of
punishment in Section 18 for violation of Clause (iii) of Section 5. Therefore, it is not
possible to read the different clauses of Sec. 5 as laying down conditions precedent.
10. It may be pointed out that, under the Child Marriage Restraint Act, 1929 which
was in force prior to the enactment of the Hindu Marriage Act 1955, the legal position
was that though the persons connected with the solemnization of a marriage in
contravention of the provisions of the Child Marriage Restraint Act were liable for
punishment, the marriage itself was not rendered void or null and void.
11. This position was clarified by the decision of Jagadisan , J. Sitting singly, in
Sivanandy v. Bhagavathyamma, MANU/TN/0253/1962 : AIR1962Mad400 . There it
was pointed out that a child marriage though prohibited by Child Marriage Restraint
act is not rendered invalid by any provision therein and that the contravention of the
provisions of that Act does not render the marriage invalid as the validity of the
marriage is a subject beyond the scope of the Act. It is also laid down in that decision:

" A marriage under the Hindu law by a minor male is valid even though the
marriage was not brought about on his behalf by his natural or lawful guardian.
The marriage under the Hindu Law is a sacrament and not a contract. The

minority of an individual may operate as a bar to his or her incurring contractual

obligations. But it cannot be impediment in the matter of performing a necessary
'samskars' . A minor's marriage without the consent of the guardian can be held
to be valid also on the application of the doctrine of factum valet. Consequently
the marriage of Hindu minor cannot be held to be invalid for want of proof that
his guardian consented to it."
In this connection, Jagadisan , J. relied upon Court in Venkatacharyulu v.
Rangacharyulu ILR (1991) Mad 316. In that case, the facts before the Division Bench
of the Madras High Court were that a Vaishnava Brahmin girl was given to the plaintiff
in marriage by her mother without the consent of her father who subsequently
repudiated the marriage. It appeared that the mother falsely informed the Brahman ,
who solemnized the marriage, that the father had consented to it. It was held that the
plaintiff was entitled to a declaration that the marriage was valid and to an injunction
restraining the parents from marrying the bride to any one else. At page 318 of the
report, the Division Bench observed:

"There can be no doubt that a Hindu marriage is a religious ceremony. According

to all the texts it is a samskaram or sacrament, the only one prescribed for a
woman and one of the principal religious rites prescribed for purification of the
soul. It is binding for life because the marriage rite completed by saptapadi or
the walking of seven steps before the consecrated fire creates a religious tie, and
a religious tie when once created, cannot be untied. It is not a mere contract in
which a consenting mind is indispensable. The person married may be a minor
or even of unsound mind, and yet, if the marriage rite is duly solemnized, there
is a valid marriage."
We respectfully agree with this statement of law as it prevailed prior to the enactment
of the Hindu Marriage Act, 1955. As Jagadisan, J. pointed out in Sivanandy
v.Bhagavathyamma MANU/TN/0253/1962 : AIR1962Mad400 , the doctrine of factum
valet was applicable to a case of this kind. The doctrine of factum valet was quite well
known to Hindu Law text-writers and the relevant sanskrit quotation is:
xxx
xxx
i.e. a fact cannot be altered by a hundred texts. The doctrine in the case of the
marriage of a minor was that the factum of marriage, which as solemnized could not
be undone by reason of a large number of legal prohibitions to the contrary. Under
Section 4 of the Hindu Marriage Act, it is only when there is a clear provision in the
Hindu Marriage Act that any text ,rule or interpretation of Hindu Law or any custom or
usage as part of that law in force immediately before the commencement of the Hindu
Marriage Act shall cease to have effect in so far as it is inconsistent with any of the
provisions of the Act.
12. In P.A. Saramma v. G. Ganapatulu (1975) , a Division Bench of this High Court
consisting of Obul Reddi , C.J. and Madhusudan Rao, J. , held that a Marriage between
the bridegroom and the bride, if their ages do not satisfy the requirements of clause

(iii) of Section 5, cannot be solemnized as it is prohibited under clause (iii) of

Section 5, and that it is not necessary that, in the event of contravention of clause
(iii)of Section 5, either party to the marriage should rush to the Court for declaring
that marriage as null and void and that such a marriage is void ab initio and is no
marriage in the eye of law. The Division Bench proceeded to hold that violation of
clause (iii) of Section 5 would render the marriage null and void ab initio though no
specific provision is made for the consequence of contravention of clause (iii) of
Section 5 either in Section 11 or in Section 12. The learned Judge of the Division
Bench read the different clauses of Section 5 as laying down conditions precedent.
With respect we are unable to agree with this conclusion of the learned Judges of the
Division Bench in P.A. Saramma v. G. Ganapatulu MANU/AP/0106/1975 :
AIR1975AP193 We find that the consequences of accepting the view of the Division
Bench would be very serious. It is well settled principle in the law relating to marriages
that the Court should lean against the interpretation of any provision of law which is
liable to render innocent children of the marriage bastards. It seems that this aspect of
bastardized children, who were otherwise innocent and who would be treated as
illegitimate children of the couple was not present to the minds of the learned Judges
who decided the case in P.A. Saramma v. G. Ganapatulu , MANU/AP/0106/1975 :
AIR1975AP193 . At this juncture it may be pointed out that, under Section 16 of the
Hindu Marriage Act, where a decree of nullity is granted in respect of any marriage
under Section 11 or Section 12 any child begotten or conceived before the decree is
made who would have been the legitimate child of the parties to the marriage if it had
been dissolved instead of having been declared null and void or annulled by a decree
of nullity shall be deemed to be their legitimate child notwithstanding the decree of
nullity. It is obvious that this provision regarding legitimacy of children would not apply
to children begotten by a couple that was married in contravention of the provisions of
clause (iii) of Section 5, because neither Section 11 nor Section 12 provides for any
consequence that might result from contravention of clause (iii) of Section 5 and the
children would be bastards taking the view that appealed to the Division bench in P.A.
Saramma v. G. Ganapatulu MANU/AP/0106/1975 : AIR1975AP193 .
13. If each of the clauses in Section 5 is to be treated as a condition precedent, the
violation of which would render the marriage void ab initio the Legislature itself would
not have given out its mind by providing for contravention of the different clauses of
Section 5 differently. This is a further ground on which we respectfully disagree with
the view taken by the learned Judges in P.A. Saramma v. G. Ganapatulu
MANU/AP/0106/1975 : AIR1975AP193 .
14. R. Pallamsetti v. D. Sriramulu, MANU/AP/0140/1968 : AIR1968AP375 , was not
directly on the point, but Obul Reddi, J. (As he then was ) in that case, had decided
another point of law from which the legal principle in support of the proposition laid
down in P. A. Saramma v. G. Ganapatulu MANU/AP/0106/1975 : AIR1975AP193 was
sought to be observed.
15. In Panchadi Chitti Venkanna v. Panchadi Mahalakshmi , Transferred Appeal No. 578
of 1973 and T.A. No. 546 of 1972 decided by Kondiah and Lakshmaiah, JJ. on
December 23, 1975*. Which arose out of matrimonial litigation, the husband sought to
rely upon the decision in P.A. Saramma v. G. Ganapatulu MANU/AP/0106/1975:
AIR1975AP193 . But the Division Bench consisting of Kondiah and Lakshmaiah ,JJ.
distinguished that earlier decision on the ground that , in the case before them, the
marriage was solemnized in 1953 prior to the enactment of the Hindu Marriage Act,

1955 and, therefore, the provisions of the Hindu Marriage Act would not apply and it
could not be said that there was violation of clause (iii) of Section 5 of the Hindu
Marriage Act, when the marriage was performed.
16. We find that, barring the view taken by a single Judge of the Punjab and Haryana
High Court in Krishni Devi v. Tulsan Devi MANU/PH/0095/1972 there is no other
reported case taking the same view as the view which appealed to Obul Reddi C.J. and
Madhusudan Rao, J. in P.A. Saramma v. Ganapatulu MANU/AP/0106/1975 :
AIR1975AP193 . On the other hand, we find that there are several decisions of other
High Courts including the decisions of a Division Bench of the Punjab and Haryana
High Court which have taken a contrary view. In Mohinder Kaur v. Major Singh ,
MANU/PH/0093/1972 the Division Bench of the Punjab and Haryana High Court
consisting of Pandit and Gopal Singh, JJ. Held that the marriage in contravention of the
clause is not a nullity and hence such contravention cannot be pleaded as a ground in
answer to a petition for restitution of conjugal rights. The Division Bench further held:

"The question for decision is whether a contravention of S. 5 of the Act is a

ground for judicial separation or for nullity of marriage or for divorce. If it is not
so, then it cannot be pleaded in defence by the appellants to a petition for
restitution of conjugal rights made by the respondents in this case. The grounds
for judicial separation, nullity of marriage and divorce are given in
S. 10, 11 and 13 of the Act respectively. The contravention of S. 5 of the Act does
not admittedly find any mention in any of these three sections."
It was also observed that the infringement of clause (iii) of S. 5 did not affect the tie of
marriage itself and tender the marriage either void or voidable. The view of a learned
single Judge was confirmed by the Division Bench. But it must be pointed out that
there is no elaborate discussion beyond what has been pointed out above in the
decision of this Division Bench of the Punjab and Haryana High Court.
17. In Mt. Kalawati v. Devi Ram MANU/HP/0001/1961, the Judicial Commissioner of
Himachal Pradesh held that the minority of the wife or of her guardian in marriage is
by itself, not a ground for getting it declared null and void under S. 11 or for its
annulment under S. 12 and there it could not be said that the Legislature was
oblivious and had inadvertently omitted to provide for the avoidance of marriage on
that ground of minority of the bride and her guardian in marriage: that the omission
was deliberate and that it is not for the Courts to scan the wisdom of the legislature
and speculate on the reasons which led the legislature to make or not to make certain
provisions. We find that the learned Judicial Commissioner has carefully gone into the
different provisions of the Hindu Marriage Act and come to his own conclusions on
these lines.
18. In Mst. Premi v. Daya Ram, MANU/HP/0005/1965, which was also decided by the
then Judicial Commissioner of Himachal Pradesh, it was held:

"It was not the intention of the legislature that contravention of every and any
condition, specified in S. 5 would render a Hindu marriage void. The
contravention of only any of the three conditions specified in clauses (i), (iv) and
(v) of S. 5 would render a Hindu Marriage null and void. Therefore the marriage

of a minor wife is neither void nor voidable, though it contravened the condition,
specified in clause (vi) of S. 5 of the Act inasmuch as the consent of her
guardian to the marriage was not obtained."
19. In Mst. Ma Hari v. Director of Consolidation 1969 All LJ 623. Satish Chandra, J.
Sitting singly, held that, though the conduct of solemnizing a marriage in
contravention of clause (iii) of S. 5 of the Hindu Marriage Act may result in the
punishment of the marrying spouses, yet the marriage would not become null and void
with its far reaching and serious consequences and that the marriage would remain
valid in law and enforceable and recognizable in a Court of law. The same view was
also taken by the Orissa High Court in Budhi Sahu v. Lohurani Sahuni ILR (1970) CAL
1215. S. Acharya, J. Sitting singly held:

"Clause (iii) of S. 5, providing for the age of the bridegroom and the bride is thus
specifically excluded from the operation of the provisions of S. 11 of the Act. The
conditions rendering a Hindu marriage null and void mentioned in S. 11 of the
Act are exhaustive, and it is only on those grounds a Court can declare by a
decree of nullity that a marriage solemnised after the commencement of the Act
is null and void. Therefore, a marriage between a bridegroom, who has not
completed the age of eighteen years and a bride who has not completed the age
of fifteen years at the time of the marriage, coming within the provisions of
clause (iii) of S. 5, and/or a marriage in which the permission as required under
clause (vi) of the said section is not obtained, is not ipso jure, void under the
provisions of S. 11of the Act."
20. In Gindan v. Barelal MANU/MP/0024/1976 : AIR1976MP83 a Division Bench of the
Madhya Pradesh High Court held that a marriage solemnized in contravention of age
mentioned in S. 5 is neither void ab initio nor even voidable; that such violation of
S. 5 does not find place either in S. 11 or in S. 12 of the Act; that it is only punishable
as an offence under S. 18; and that the marriage solemnized would remain valid,
enforceable, and recognizable in Courts of law. The learned Judges of the Madhya
Pradesh High Court followed the decision of the Division Bench of the Punjab and
Haryana High Court in Mohinder Kaur v. Major Singh, MANU/PH/0095/1972 and
preferred the view of the Judicial Commissioner of the Himachal Pradesh in Smt.
Naumi v. Narotam, MANU/HP/0005/1963, and of the Orissa High Court in Budhi Sahu
v. Lohurani Sahuni ILR (1970) CAL 1215, and dissented from the view taken by this
Court in P. A. Saramma v. G. Ganapatulu MANU/AP/0106/1975 : AIR1975AP193
(supra).
21. This review of the case law discloses that barring a single Judge of the Punjab and
Haryana High Court in Krishni Devi v. Tulsan Devi MANU/PH/0095/1972 and the
Division Bench of this Court in P.A. Saramma v. Ganapatulu MANU/AP/0106/1975 :
AIR1975AP193 in all other reported cases, different High Courts have held that the
contravention of clause (iii) of S. 5 does not render the marriage void ab initio or
voidable. In our opinion, the view taken by these different High Courts is correct and
we get confirmation of the view, which we are adopting on the basis of the reasoning
set out hereinabove, from the decisions of the different High Courts.

22. It may be pointed out that when the provisions of the Hindu Marriage Act were
extensively amended in 1976, by the Marriage Laws (Amendment) Act, 1976 (Act No.
68 of 1976) the provisions of clause (iii) of S. 5 have not been interfered with. S. 13 of
the Hindu Marriage Act. Which provides for different grounds on which decree for
dissolution of marriage can be granted, has been amended and under sub-section (2)
of S. 13, a new clause (iv) has been inserted so that after the amendment, a wife may
present a petition for dissolution of her marriage by a decree of divorce on the ground
that her marriage (whether consummated or not) was solemnized before she attained
the age of fifteen years and she has repudiated the marriage after attaining that age
but before attaining the age of eighteen years and the Explanation to clause (iv)
provides; This clause applies whether the marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976. "This clause (iv)
inserted in sub-section (2) of Legislature that the violation of Clause (iii) of S. 5 is not
to render the marriage either void or voidable; but in case the bride was below the age
of fifteen years at the time of solemnization of the marriage and she has repudiated
the marriage after attaining that age but before attaining the age of eighteen years, a
decree for divorce can be obtained whether the marriage consummated or not. If the
marriage performed in contravention of clause (iii) of S. 5 was void ab initio, there was
no necessity to insert clause (iv) in sub-s. (2) of S. 13. It may be pointed out that, by
insertion of this clause (iv), the Legislature has given to Hindu besides an option of
what is known in Mohammadan Law as Khyar-ul-bulugh (Option of Puberty). But the
Legislature has not proceeded on the footing that the marriage between the spouses,
when it is performed in violation of clause (iii) of S. 5, is void ab initio. This
amendment reinforces and confirms the view that we are taking on a pure
interpretation of the different provisions of the Hindu Marriage Act, 1955 even as it
stood prior to its amendment by the Marriage Laws (Amendment) Act, 1976.
23. For these reasons we hold that the decision of the Division Bench of this High
Court in P. A. Saramma v. G. Ganapatulu MANU/AP/0106/1975 : AIR1975AP193
(supra), does not lay down the correct law and it must be held that any marriage
solemnized in contravention of clause (iii) of S. 5 is neither void nor voidable, the only
consequence being that the persons concerned are liable for punishment under
S. 18 and further if the requirements of clause (iv) of sub-section (2) of S. 13, as
inserted by the Marriage Laws (Amendment) Act, 1976 are satisfied, at the instance of
the bride, a decree for divorce can be granted. Barring these two consequences, one
arising under S. 18 and the other arising under clause (iv) of sub-s. (2) of S. 13, after
the enactment of the Marriage Laws (Amendment) Act, 1976, there is no other
consequence whatsoever resulting from the contravention of the provisions of clause
(iii) of S. 5.
Under these circumstances so far as Criminal Revision Case No. 190/75 is concerned,
the matter will now go before a single Judge for decision according to law as explained
by us. So far as Criminal Miscellaneous Petition No. 809/76 is concerned, the only
ground on which the order of the Judicial First Class Magistrate, Siddipet, is sought to
be quashed is that the marriage between the parties was void, since the marriage was
solemnized in 1959 when the bridegroom was 13 years of age and the bride was 9
years of age and relying upon the decision in P. A. Saramma v. G. Ganapatulu
MANU/AP/0106/1975 : AIR1975AP193 (supra) it was sought to be argued that the
complaint filed by the wife alleging that the husband had committed an offence
punishable under S. 494 I. P. C. And that the other accused had committed an offence
punishable under S. 494, read with S. 109, I. P. C. Must be quashed. This relief cannot

be granted in the view we have taken. Criminal Miscellaneous petition No. 809/76 is
therefore, dismissed. Ordered accordingly.
24. Ordered accordingly.