Report No. 22
17. Clause 5(1)-Consent of guardian in marriage.-
As regards clause 5(1), it has been suggested that where the minor bride is not living with her parents, but is under the care and custody of some other relation or person, that other person should have the authority to give consent to the marriage as a de facto guardian. We do not accept this suggestion. The trend of legislation and judicial decisions latterly has been to construe narrowly the powers of the de facto guardian, and there is very good reason for this, because it is easy for any stranger to put himself in the position of a de facto guardian and expose the minor to risks by his acts. As already observed by us in our previous Report1, the de facto guardian can obtain the leave of the district court, and, therefore, it is unnecessary to specifically mention him in the list of guardians.
1. See 15th Report, para. 26.
18. (a) It has also been suggested that, failing the father and mother and a de facto guardian, the parties should have a right to apply to the ecclesiastical authorities for obtaining consent for the marriage. This has also been considered by us in our previous Report1 wherein we have expressed the opinion that the function of granting permission to an intended marriage in such cases is one which pertains to the domain of civil rights and is properly confided to the courts.
(b) Another criticism which has been levelled against the scheme of clause 5 may be mentioned. Under sub-clause (3), when a person, entitled to guardianship under sub-clause (1) refuses, or is for any cause unable or unfit to act as such, the person next in order should be entitled to be the guardian. It is said that under this clause, when the father refuses to give his consent, the brother might act as guardian and give consent to the marriage and that would lead to disharmony in the family. This criticism proceeds on a misapprehension as to the true scope of the provision. It is only when the person first in order refuses to act as guardian that the person next in order will have the right to act as guardian. Where there is a refusal to give consent, there is no refusal to act as guardian, and the person next in the order of guardianship will have no right to act as guardian.
1. See 15th Report, para. 27.