Report No. 15
Clause 5
General.-It is considered that a comprehensive provision relating to guardian in marriage would be desirable. The clause has been drafted generally on the basis of the corresponding provision in the Hindu Marriage Act. Important departures from that Act are explained below.
Sub-clause (1).-The list of guardians given in the sub-clause is much longer than that in the existing Act. A full list has been given, in order to make the position clear, [The list given in the Hindu Marriage Act has been followed, with the omission of the paternal uncle by half blood. He has been omitted in view of the social conditions of Christians.]
Sub-clause (2).-A slight verbal departure from the Hindu Marriage Act is the use of the formula "has completed" in relation to the guardian. This is in conformity with the word "completed" used in other clauses.1
Sub-clause (3).-Needs no Comments.
Sub-clause (4).-This differs from the Hindu Marriage Act, whereunder in such circumstances the guardian's consent is not necessary. In view of the social conditions of Christians, it is considered that such a provision would be useful.
The words "where no such person is living and willing etc., will make it clear that the sub-clause will apply not only where the persons entitled to act as natural guardians are dead, but also where, though living, they are not willing to act or able to act etc. Contrast the Hindu Marriage Act, where the words used are "In the absence of". It is considered that the wording adopted in the sub-clause will be more clear.
Existing section 45 of the Christian Marriage Act deals elaborately with the procedure to be followed in cases where a guardian refuses consent. This has been covered, in substance, in this sub-clause, but briefly. Apart from this change in form, the following changes of substance have been made in the provision regarding the court's permission:-
(a) The case where the guardian is insane has been omitted, since an insane guardian will be treated as incompetent to act, and the guardian next in order of preference will automatically take his place.
(b) The provision will apply to all marriages whether solemnized by ordained Ministers, licensed Ministers or Marriage Registrars.
(c) The provision has been made applicable to the father (as well as to any other guardian), sinee there is no reason why the case of the father's consent should be left uncovered.
(d) The petition will lie in all cases to the "district court" as defined in the definition clause.
(e) Unnecessary matter,has been omitted.
Sub-clauses (5) and (6) need no further comments.
Sub-clause (7).-It is considered that the decision of the district court granting or refusing permission should be final and not subject to any appeal etc. Hence this sub-clause. (There is no-such- provision in the Hindu Marriage Act).
Sub-clauses (8) and (9) need no further comments.
1. See notes to clause 2-"Minor".
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