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Report No. 59

3.21. Suggestion to give right to avoid the Marriage.-

It was suggested before us that these observations create some doubt as to the effect and significance of the requirement of the minimum age. Since the general understanding1 is that the breach of that condition does not affect the validity of the marriage, it was stated that it was advisable to avoid such controversies in future.

1. (a) Ram Saran v. Sital, AIR 1939 All 340 (Case under the Child Marriage Act).

(b) B. Siranandy v. P. Bhagavathyamma, AIR 1962 Mad 400, (case under the Hindu Marriage Act).

3.22. The suggestion was that from the social point of view, it would be more just to provide, that the party who was under-age (mostly, that party would be the wife) should have a right to avoid the marriage, subject to appropriate safeguards as to limitation of one year and non-consummation1 of the marriage. It may in this connection be noted that in England, before 1929, the age of consent for marriage was determined by puberty (fixed, by presumption, at 14 years for boys and 12 years for girls). Marriage under that age (if unconsummated) could be avoided by extra-judicial act, after the parties attained 14 years and 12 years respectively2.

King Henry VIII, who, while under fourteen, married Catharine of Aragon in 1504, made3 a "protest" against the marriage in 1505, when he reached the age of fifteen. It may be noted4 that Catharine was the widow of his elder brother, and was five years older than Henry VIII. But the protest became irrelevant, because he later married her5 again in 1509.

1. Section 12 would then require amendment.

2. Geary Marriage and Family Relations, (1892), p. 30, quoted in Graveson A Century of Family Law, (1957), p. 340.

3. Geary Marriage and Family Relations, (1892), p. 30 quoted in Graveson A Century of Family Law, (1957), p. 340.

4. Anthony Toyne An English Readers' History of England, (Oxford, 1971), p. 99.

5. Geary Marriage and Family Relations, (1892), p. 30.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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