Report No. 59
3.20. Sections 5(iii) and 5(vi)-Minimum age and section 9(1).-
One of the conditions which is required to be fulfilled for the solemnisation of a Hindu marriage is, under section 5(iii), that.
"(iii) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage."
However, the fact that a marriage has been solemnized in violation of this condition has not been made a ground for any matrimonial relief. The general understanding1 is that the marriage remains valid, though criminal penalties may be attracted by reason of violation of the requirements as to minimum age. Certain observations in a Punjab case2, however, require to be considered. In that case, which related to a petition for restitution of conjugal rights filed by the husband against the wife, the respondent wife, at the time of marriage, was hardly 12 years of age, and the petitioner husband was also 15 or 16 years of age, so that section 5(iii) was not compiled with.
It was the defence of the wife that, because of this, no marriage could validly take place. The High Court took the view that under section 9(2), only that fact could be pleaded in answer to a petition for restitution which was a ground for matrimonial relief. The fact that the parties were under-age was not a ground for nullity or judicial separation or divorce. The High Court, therefore, held that it was not a defence to a petition for restitution that the parties were under-age. While doing so, however, the High Court observed:-
"A marriage may not be valid if not performed between the parties who have not attained the requisite age as prescribed by law.3 Invalidity or voidability of the marriage cannot be pleaded in defence in answer to a petition for restitution of conjugal rights."
1. See para. 3.21, infra.
2. Budhan v. Man Rai, (1970) 72 Punj LR 102 (104) (H.R. Sodhi J.).
3. Emphasis supplied.