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Report No. 81

6.9. Effect of marriage without consent of guardian.-

It should be pointed out, however, that a marriage performed without the consent of the guardian may yet be valid on the doctrine of factum valet. The following observations in a Bombay case by Sargent C.J. are pertinent1:-

"The consent of parents and guardians as a condition precedent of the validity of marriage before the parties have arrived at a certain age is required by the law of most European countries. But the intention has been always expressed in the clearest language so as to admit of no doubt. The invalidity of the marriage of a male under twenty-five without consent of parents is, by French law, provided for by ,express words declaring that such a male is 'incapable of marrying' without consent: see Code Napolean.

And, again, again, Lord Hardwicke's Act in England, which was passed in a great measure to prevent the marriage of minors without the consent of parents or guardians, declares that the marriage of persons wilfully inter-married without the license from a person having authority to, grant the same (the grant of which is forbidden to minors without such consent of parents and guardians), is null and void. No such language, (as we have already pointed out), is to be found in the Hindu texts, and without it both authority and reason require that the marriage should be supported on the principle of factum valet."

1. Khushal Chand Lal Chand v. Bai Mani, 1886 ILR 11 Boni 247 (256).

Hindu Widows Re-marriage Act, 1856 Back

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