William Rebello v Jose Agnelo Vaz and Another.
Bombay High Court
PANAJI BENCH
23 November 1995
The Judgment was delivered by :
:- This Appeal raises an important question of law with regard to the application of the provisions of the Child Marriage Restraint Act, 1929, and the point raised is of public importance.
The provisions of the Child Marriage Restraint Act are extended to Goa, Daman and Diu by virtue of the Regulation 11 of 1963. A notification was issued on 5th January, 1965 by the Government and the provisions of the Child Marriage Restraint Act are brought into force in this area with effect from 1st February, 1965.
An application came to be filed in the Court of the learned Civil Judge, Senior Division, Vasco-da-Gama by the Applicants, i.e., Jose Agnelo Vaz and Miss Elemina Almeida for dispensing with the age limit of the marriage and to give necessary directions to the Civil Registration Authority to register the marriage of the Applicants.
The application was made in view of the provisions of Arts. 5 and 6 of the Portuguese Civil Code. As Applicant No. 1 was not 21 years of Age and could not marry, therefore, the learned trial Judge was requested to remove the impediment, as both the parents of Applicant No. 1 were dead and the consent of the other relatives also could not be obtained. The death certificates of both the parents of Applicant No. 1 were annexed with the application. It was also mentioned that the guardian of Applicant No. 1 has no objection for the marriage; so also, the parents of Applicant No.2 have given consent for such marriage.
In the application, it was contended that as a result of friendship between Applicants Nos.1 and 2, Applicant No. 2 – Miss Elemina Almeida – became pregnant and the pregnancy was of 20 weeks old.
The learned Civil Judge, Senior Division, has found that Applicant No. 1 – Mr. Vaz – was falling short by about 8 months to complete 21 years of age; and Applicant No. 2 is found to have completed the age of 18 years.
The application for removal of impediment was entertained under the provisions of Art. 5 of the Portuguese Civil Code; and the learned trial Judge, on the basis of the submissions made on oaths before him by the respectable persons – Angelina Gracious, Mario Pereira and Francisco Xavier Cardozo – to the effect that Applicants Nos. 1 and 2 are match to each other and their marriage will be ideal one, considered the application. He has further taken into consideration the fact that the cordial relations of Applicants Nos. 1 and 2 resulted into pregnancy of Applicant No. 2; and having regard to the interest of the children, and also of the child that would be born to the couple after delivery, thought it fit to remove the impediment and accordingly allowed the application. It is further mentioned in the order that under the provisions of Art. 6 of the Portuguese Civil Code, he feels it necessary to grant emancipation for removal of the impediment of the age limit. Accordingly, he passed the order directing for removal of impediment for this marriage and he has given further directions to the Civil Registrar to register their marriage.
As the directions in respect of the registration of the marriage were not followed, an application for contempt was filed. On the contempt application, the Civil Registrar of Vasco-da-Gama was directed to file affidavit before the Court within seven days in respect of his initiation of the proceedings to register the marriage of the Applicant within reasonable period, keeping in view the fact that Applicant No. 2 would deliver baby within a short time. The order in contempt was also directed to be communicated to the Civil Registrar, Vasco-da-Gama, Goa, for immediate compliance.
NOVEMBER, 1995.
Therefore, the Civil Registrar has initiated the proceedings and the marriage is accordingly registered.
The orders passed by the learned trial Judge on Miscellaneous Civil Application No.3 of 1992, and thereafter, in contempt proceedings, are challenged in this Appeal.
Shri H.R. Bharne, the learned Government Advocate, contended that the decision given by the learned trial Judge is causing great inconvenience and the Civil Registrars are receiving applications for the registration of such marriages on the basis of the orders passed by the learned trial Judge in this matter.
Shri Bharne has further contended that the orders passed by the learned trial Judge are in utter violation of the provisions of the Child Marriage Restraint Act, as amended from time to time. According to him, the learned trial Judge should not have issued any directions in respect of the registration of the marriage of Applicants Nos. 1 and 2, as the said marriage is performed in contravention of the provisions of the Child Marriage Restraint Act. The said marriage, according to him, is contracted between the parties, who are liable for punishment under the provisions of the Child Marriage Restraint Act.
This Appeal filed by the Civil Registrar of Vasco-da-Gama indicates the anxiety of the State Government, as the attempts to implement the provisions of the Child Marriage Restraint Act are getting frustrated, as people are asking for registration of marriage on the basis of the order passed by the learned trial Judge in this matter.
The orders, which are passed by the learned trial Judge, are supported by Shri Joseph Vaz, learned Counsel appearing for Respondents Nos. 1 and 2 – original Applicants Nos. 1 and 2. According to Shri Vaz, the provisions of the Child Marriage Restraint Act are not violated by the learned trial Judge. According to him, a social obligation cast on the Courts under Arts. 5 and 6 of the Portuguese Civil Code is performed by the learned trial Judge; and the intervention of the learned trial Judge was necessitated because of the circumstances and peculiar facts of this case.
Shri Vaz has further contended that the marriage is directed to be registered by removing the impediments, under the Provisions of Arts. 5 and 6 of the Portuguese Civil Code, which are Family Laws in the State of Goa. Shri Vaz contended that the provisions of the Family Laws take precedence over the provisions of the Child Marriage Restraint Act. His further contention is that the provisions of the Portuguese Civil Code (containing Family Laws) amount to a special law and local law, which, under the rules of interpretation, takes precedence over the general law, which is incorporated in the provisions of the Child Marriage Restraint Act.
The Child Marriage Restraint Act, 1929, was amended in the year 1978 by Amending Act 2 of 1978; and the definition of ‘child’ is substituted by the said Amending Act 2 of 1978; which defines ‘child’,
“means person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.”
S. 6 of the said Amending Act 2 of 1978 further provides for the amendments of certain enactments and recites that the enactments specified in the Schedule are hereby amended in the manner mentioned therein. In the Schedule to the Amending Act 2 of 1978, certain sections of only two enactments stand amended. One of them is the Indian Christian Marriage Act, 1872, and in S. 60 of that Act, following amendments were provided for by the said Schedule :
“in S. 60. –
(i) in condition number (1), for the words ‘eighteen years’ and ‘fifteen years’, the words ‘twenty-one years’ and ‘eighteen years’ shall respectively be substituted;
(ii) the proviso shall be omitted.”
The second Act, which stood amended by the said Amending Act 2 of 1978, is the Hindu Marriage Act, 1955, in which the following amendments were made :
“(1) In Section 5, –
(i) in clause (iii), for the words ‘eighteen years’ and ‘fifteen years’, the words ‘twenty-one years’ and ‘eighteen years’ shall respectively be substituted;
(ii) Cl. (vi) shall be omitted.
(2) S. 6 shall be omitted.
(3) In Section 12, in sub-section (1), in clause (c), for the words and figures ‘is required under Section 5’, the words, figures and brackets ‘was required u/s. 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978’ shall be substituted,
(4) In Section 18,
(i) for the brackets, letters and word ‘(v) and (vi),’ the word, breckets and letter ‘and (v)’ shall be substituted;
(ii) in clause (b), the word ‘and’ occurring at the end shall be omitted;
(iii) cl. (c) shall be omitted.”
Shri Vaz has further contended that the amendments made to the Child Marriage Restraint Act by the Amending Act 2 of 1978 will have to be considered on the basis of amendments made by way of Schedule to the Indian Christian Marriage Act and the Hindu Marriage Act. According to him, the definition of ‘child’, which is substituted by the Amendment Act 2 of 1978, will have to be read in the context if the amendments of these 2 Acts (i.e., the Indian Christian Marriage Act and the Hindu Marriage Act ), and not qua any other enactments relating to marriage of other citizens. According to him, therefore, the definition was amended only in regard to the child marriages enumerated and relating to such marriage covered by the provisions of the Indian Christian Marriage Act and the Hindu Marriage Act.
The learned Counsel on both sides have invited may attention to the provisions of several acts, governing the marriages in this country. Before the amendment by the Amending Act 2 of 1978, the relevant provisions of the Indian Christian Marriage Act in respect of ages was thus :-
“S. 60. On what conditions marriages of Indian Christians may be certified. –
Every marriage between Indian Christians applying for a certificate, shall, …. be certified under this Part, if the following conditions be fulfilled, and not otherwise :-
(1) the age of the man intending to be married shall not be under eighteen years, and the age of the woman intending to be married shall not be under fifteen years;
“
By virtue of the amendment made by the Amending Act 2 to 1978, the age of the man intending to be married shall not be under twenty-one years, and the age of the woman intending to be married shall not be under 18 years.
S. 5 of the Hindu Marriage Act, before its amendment by the Amending Act 2 of 1978, provided as under :-
“A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :-
(iii) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage;……”
By virtue of the Amending Act 2 of 1978, the age of the bridegroom was to be twenty-one years and that of the bride to be eighteen years.
For the Muslims, Mr. Asaf A.A. Fyzee in his Book, “Outlines of Muhammadan Law”, Fourth Edition, has mentioned, at page 93, the capacity of a Muslim for getting married, and under the caption, ‘Capacity’, it is mentioned :-
“Every Muslim of sound mind who has attained majority can enter into a contract of marriage. Majority is attained at puberty. The presumption is that a person attains majority at 15……”
Certain exceptions are also mentioned by the learned Author. While understanding the true spirit and nature of the ‘capacity’, it is further necessary to consider the provisions in respect of the entitlement to dissolution of the marriage. In the case of a girl married during minority, she is entitled to a dissolution of her marriage if she proves the following facts.
(1) that she was given in marriage by her father or other guardian;
(2) that the marriage took place before she attained the age of 15;
(3) that she repudiated the marriage before she attained the age of 18; and
(4) that the marriage has not been consummated.
Lastly, the consummation of marriage before the age of puberty does not deprive the wife of her option.
According to the learned Author, Cl. (vii) of S. 2 of the Act (i.e., the Dissolution of Muslim Marriages Act, 1939 ), fixes fifteen as the age of puberty without any opportunity of rebuttal.
Having regard to these provisions in respect of the capacity to perform marriage, appearing in the said Book of Mr. Fyzee, it can be gathered that the age, both for male and female in Muslims, can be regarded as fixed at fifteen years for the marriage under the Muslim Law.
In this connection, S. 3 of the Parsi Marriage and Divorce Act, 1936, provides as follows :-
“No marriage shall be valid if –
………..
(c) in the case of any Parsi (whether such Parsi has changed his or her religion or domicile or not) who has not completed the age of twenty-one years, the consent of his or her father or guardian has not been previously given to such marriage.”
The question in relation to S. 3 of the Parsi Marriage and Divorce Act is considered by our High Court in 1936 Indlaw MUM 312, and it is held therein that the statutory impediment contained in S. 3 is one which interferes with the freedom of parties to contract a marriage who are otherwise competent to do so on attaining 18 years by postponing their freedom of action to 21 years; but this does not prevent a person from enforcing a contract entered into by the mother on behalf of her by continuing the suit commenced by the mother after attaining her 18th year. The marriageable age, therefore, is 21 years, but, after attaining the age of 18 years, a marriage could be performed validly by obtaining a consent of his or her father or guardian.
For a valid marriage, S. 4(c) of the Special Marriage Act, 1954, provides that the male must have completed the age of twenty-one years and the female the age of eighteen years.
Marriages in the State of Goa are governed by the Family Laws of Goa, Daman and Diu. In Family Laws of Goa, Daman and Diu, Volume I, there is a Chapter at page 39 dealing with Civil Marriage and its Solemnization. These provisions are effective and in force in the Territories of Goa, Daman and Diu with effect from 26th May, 1911. Art. 1 thereof provides that the marriage is a contract solemnized between two persons of different sex with the purpose of legitimately constituting a family. Art. 2 mentions that such contract is purely civil and is presumed to be perpetual. Art. 3 provides that all Portuguese shall solemnize the marriage before the respective officer of Civil Registration, under the conditions and in the manner established in civil law, and only such marriage is valid. Chapter II of the Family Laws deals with Impediments to the Marriage and Art. 4 provides that certain categories of people mentioned therein shall not contract marriage. Sub-art. (3) of Art. 4 provides that those males below the age of eighteen years, and females below the age of sixteen years, shall not contract marriage. Art. 5 provides as under :-
“A male above the age of eighteen years and a female above the age of sixteen years, but below twenty one years of age, and not emancipated, is equally prohibited to marry as long as the consent of the parents or of those who represent them is not secured or the lack of such consent is made good by legal process.”
Under Article 6, it is provided that in case of dissent between the parents in respect of the grant of permission for marriage, the Judge shall decide after hearing both the spouses, in the presence of two respectable persons, in the same manner as provided by Arts. 37 and 38 of the Decree dated 3rd November, 1910. The paragraphs following thereafter deal with the procedure.
The learned trial Judge has proceeded to remove the impediment and directed the Civil Registrar to register the marriage of Respondents Nos. 1 and 2 under the provisions of Arts. 5 and 6, as indicated above.
On the basis of these provisions of different enactments in respect of the marriages operating in this country, it was argued that by virtue of the Amending Act 2 of 1978, the marriageable age stood increased in respect of the marriages under the Indian Christian Marriage Act and the Hindu Marriage Act and the other provisions of other statutes are not amended, indicating the intention of the Legislature to apply the provisions of the Amending Act 2 of 1978 only qua the marriages governed by those enactments and not other statutes. It is admitted position that the provisions of Art. 5 of the Portuguese Civil Code (Family Laws) are not at all amended, like that of the provisions under the Indian Christian Marriage Act and the Hindu Marriage Act.
Shri Bharne, learned Govt. Advocate, has contended that the definition of the child, substituted by the Amending Act 2 of 1978, will apply to every ‘child’, irrespective of the child performing marriage either under the Indian Christian Marriage Act, or, the Hindu Marriage Act, or, under the provisions of any other Statute governing marriages. The amendments to the Indian Christian Marriage Act and the Hindu Marriage Act are to the provisions of S. 60 and S. 5 thereof respectively, which deal with the validity of the marriage. S. 6 of the Amending Act 2 of 1978 does not govern the interpretation of the definition of ‘child’. As the Legislature wanted that the marriages performed under the Indian Christian Marriage Act and the Hindu Marriage Act, in violation of S. 60 and S. 5 thereof, are required to be invalidated. The amendment made by Section 6, therefore, relates to the invalidation of the marriages performed under the relevant provisions of those two Acts and has no bearing on the interpretation of the definition of ‘child’ contained in Child Marriage Restraint Act. In other words, the provisions make it clear that a male below 21 years of age and a female below 18 years of age, if marry under any of these two enactments, their marriage, in addition to the consequences provided for under the Child Marriage Restraint Act, will suffer invalidation of their marriage itself.
My attention is invited to the judgments of this Court and of other High Courts, though not directly dealing with the point, but considering the consequences of such marriage.
In Tattya Mohyaji Dhomse v. Ranba Dadaji Dhomse, 1952 Indlaw MUM 55, a Division Bench of this Court held that the expenses incurred in connection with the marriage of a Hindu child, whose marriage has taken place in contravention of the provisions of the Child Marriage Restraint Act, cannot constitute legal necessity under the Hindu Law.
Similar question came up for consideration before the learned single Judge of this Court in Rambhau Gunjaram v. Rajaram Laxman, 1955 Indlaw MUM 127. It was again reiterated therein that when the marriage of a minor was performed in violation of the provisions of the Child Marriage Restraint Act, the debt having been incurred by the de factor guardian for purposes which were not lawful, the alienation effected for purposes of satisfying those debts cannot be regarded as a lawful alienation binding upon the minors.
Identical question is considered by the Orissa High Court in Birupakshya Das v. Kunja Bhari, 1960 Indlaw ORI 78; and it was held therein that the Child Marriage Restraint Act does not affect the validity of the marriage even though it may be in contravention of the provisions of the Act. In spite of the marriage being valid, the Legislature disapproves all such marriage punishable under the law. To incur expenses for performing a ceremony which is a criminal act, cannot be taken to be legal necessity for which a karta of the family is empowered under the Hindu law to effect an alienation. These observations of the Orissa High Court were also on the basis of the view taken by the Calcutta High Court in Ram Jash Agarwalla v. Chand Mandal, 1937 (2) ILR(Cal) 764.
In B. Sivanandy v. P. Bhagavathyamma, 1961 Indlaw MAD 179, the Madras High Court, having regard to the provisions of the Child Marriage Restraint Act, has held that a child marriage though prohibited by Child Marriage Restraint Act is not rendered invalid by any provisions therein. A contravention of the provisions of that Act does not render the marriage invalid, as the validity of the marriage is a subject beyond the scope of the Act.
Having regard to the overwhelming views of different High Courts, Shri Bharne contended that the marriage performed in contravention of the provisions of theChild Marriage Restraint Act by Applicants Nos. 1 and 2 and registered under the orders of the Court by the Civil Registrar may be valid, but the consequences mentioned in the said Act must follow. He has further contended that the learned trial Judge has not taken into consideration the provisions of the Child Marriage Restraint Act and the objects contained therein before issuing the directions to register the marriage of the Applicants Nos. 1 and 2. The directions to register such marriage are in contravention of the provisions of the Child Marriage Restraint Act and would amount to granting legality to an unlawful act. The learned trial Judge, according to him, therefore, had no jurisdiction to give even a colour of legality to an unlawful act.
The learned Counsel for the Respondents, however, contended that the provisions of the Child Marriage Restraint Act should not be considered in abstract and have to be considered in the light of the social context. According to him, under the provisions of Art. 5 of the Portuguese Civil Code, male and female children above 18 years of age can get married, provided the hurdle created by way of impediment is removed by the procedure provided for in Art. 5 of the Act. According to the learned Counsel, under the provisions of Article 5, the learned trial Judge was competent to remove, by way of a social cause, the impediment. The age of majority, even as per the Child Marriage Restraint Act, is 18 years and the marriage cannot, therefore, be said to be of the minors; but the marriage is of the major persons, performance of which is kept dependent upon the fact of attaining age of 21 years by a male spouse, or upon obtaining consent or, in the absence of any consent, by the parents or relatives, by moving the Court by following the procedure prescribed u/art. 6. Such a marriage not only cannot be said to be invalid, but also cannot be said to be in violation of any of the provisions of the Child Marriage Restraint Act.
Shri Vaz has invited my attention to the Statement of Objects and the Reasons of the Amending Act 2 to 1978, as incorporated in The AIR Manual, Vol. 4, 5th Edition, p.188, wherein it is mentioned :-
“The question of increasing the minimum age of marriage for males and females has been considered in the present context when there is an urgent need to check the growth of population in the country. Such increase of the minimum age of marriage will result in lowering the total fertility rate on account of latter span of married life. It will also result in more responsible parenthood and in better health of the mother and child.”
According to him, amongst several objects, the most prominent is that of lowering the total fertility rate on account of later span of married life; and the emphasis is still more on the aspect of bringing responsible parenthood and in maintaining better health of the mother and the child. He has, therefore, argued on the facts of the present case, that Applicant No.2, the female spouse, was pregnant because of the friendly relations between the two. The fact that Applicant No.2 was pregnant was required to be taken into consideration. If the marriage is not directed to be registered, both female and male partners would have gone astray and that would have affected the status of the child in womb. The object of responsible parenthood and better health of the mother and the child would have got frustrated if the learned trial Judge would not have acted to remove the impediment. Non-granting of the permission, or, non-removal of the impediment by the learned trial Judge would have defeated the purpose of the Act, instead of enhancing the same, as the same would have resulted in likelihood of the parents of the child in womb going astray and becoming irresponsible parents.
He has further contended that if the marriage would not have been registered, the result would have been – instead of giving a legal status to the child in womb, a stigma of illegitimacy would have been attached to the child, for no fault of the child in womb. For all these reasons, according to Shri Vaz, the learned trial Judge had jurisdiction and acted on the proper considerations for the removal of impediments under Arts. 5 and 6 of the Portuguese Civil Code.
There is considerable force in the submissions made by Shri Vaz. It would have been better if the Legislature, either of the State or of the Union, had seriously considered the matter of bringing amendments to the provisions of Arts. 5 and 6, similar to those made in the Indian Christian Marriage Act and the Hindu Marriage Act. There seems to be apparent anomaly on the face of it, as the territory of Goa formed part of this country in 1961 and became State in 1987.
The marriage performed in contravention of the Child Marriage Restraint Act are not invalid, as is apparent from the views taken by several High Courts. Such a marriage is still a valid marriage, more particularly so in view of the fact that the provisions of Arts. 5 and 6 of the Portuguese Civil Code are intact.
But the question does not rest at that. This Court, as well as other High Courts, have held that the marriage performed in violation of the Child Marriage Restraint Act is unlawful marriage. The persons involved in the process committed an offence under the provisions of the said Act. The question, therefore, is: Whether any colour of legality can be given to the unlawful act by the Court acting under the provisions of Arts. 5 and 6 of the Portuguese Civil Code?
In this context, the learned Counsel for the Respondents, Shri Vaz, has contended that the provisions of Arts. 5 and 6 of the Portuguese Civil Code will have precedence over the provisions of the Child Marriage Restraint Act, and that the provisions of said Arts. 5 and 6 are special law; and also a local law, which will have precedence over the general law contained in the Child Marriage Restraint Act.
In support of the above contentions, Shri Vaz has invited my attention to several decisions.
In M/s. Cadar Constructions v. M/s. Tara Tiles, 1983 Indlaw MUM 234, the question of applicability of the provisions of Portuguese Civil Code and the Limitation Act came up for consideration. The Limitation Act was extended and made applicable to the State of Goa on 1st January, 1963 and, in that context, the problem of applicability of the provisions of Portuguese Civil Code and the Limitation Act came to be considered by the Division Bench of this Court. In paragraph 16 of the said decision, it is observed :-
“Two important features of this case must be noted at this stage itself. We have already mentioned the various dates on which the different laws relevant for our purposes came into force in this Union Territory. The cause of action for the suit filed by the plaintiff for damages for malicious prosecution arose before the Limitation Act had come into force in this Union Territory. In fact it arose even before 20th of December, 1961. Similarly that suit was also filed before the Code of Civil Procedure came into force in this Union Territory.”
In this background, the Court has considered the applicability of Art. 535 of the Portuguese Civil Code. I am unable to appreciate as to how this helps in holding that the provisions of Arts. 5 and 6 of the Portuguese Civil Code take precedence over the provisions of the Child Marriage Restraint Act. It is apparent that the provisions of Arts. 5 and 6 of the Portuguese Civil Code apply along with the provisions of the Child Marriage Restraint Act; and both will have to be considered in harmonious manner.
In the light of the omission to amend the provisions of Arts. 5 and 6 of the Portuguese Civil Code (Family Laws), similar to that of the provisions of the Indian Christian Marriage Act and the Hindu Marriage Act, reliance was placed on the decision of the Supreme Court in Smt. Hira Devi v. District Board, Shahjanapur, 1952 Indlaw SC 49, wherein the Supreme Court observed :-
“No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act.”
Even as per this judgment of the Supreme Court, a duty is cast upon the Court to try and harmonise the various provisions of the Act/Acts passed by the Legislature. Though the provisions of Arts. 5 and 6 of the Portuguese Civil Code (Family Laws) are not amended but, as already pointed out, the amended provisions of the Indian Christian Marriage Act and the Hindu Marriage Act relate to the validity or invalidity of the marriage. A marriage governed under the Acts not incorporated in the Schedule to the Amending Act 2 of 1978 is admittedly a valid marriage and, can, by no stretch of imagination, be said to be invalid marriage. By amending those 2 Acts, the Legislature wanted to invalidate the marriages themselves, apart from other consequences arising out of the Child Marriage Restraint Act.
In the Krishna Dist. Co-operative Marketing Society Ltd., Vijaywada v. N.V. Purnachandra Rao, 1987 Indlaw SC 28165, the question related to whether the State Act prevailed over the provisions of the Central Act in the matter of an industrial dispute arising out of the Andhra Pradesh Shops and Establishments Act. To my mind, the ratio laid down in this case has no application to this case regarding the precedence of the provisions of Arts. 5 and 6 over the provisions of the Child Marriage Restraint Act.
In our case, the two subjects dealt with by the Legislature are quite and altogether different. Though they are clubbed together in one Amending Act, the provisions of the Child Marriage Restraint Act, firstly, stood amended by virtue of substitution of definition of ‘child’; and, secondly, under S. 6 of the said Amending Act, different provisions of the Indian Christian Marriage Act and the Hindu Marriage Act, with different intention, namely, to invalidate the child marriages performed thereunder, are amended. The ratio laid down by the Supreme Court has no application whatsoever in the present case, as the amendment of the Child Marriage Restraint Act and the amendments of the Indian Christian Act and the amendments of the Indian Christian Marriage Act and the Hindu Marriage Act qua competency of marriages thereunder are different subjects altogether.
My attention was also invited to the decision in Shri Domnic Anthony Fernandes v. Smt. Petorlina Antao Fernandes, 1989 (2) Goa Law Times 238, wherein the question related to Art. 75 of the Portuguese Code of Civil Procedure, 1939, qua S. 4 of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and Arbitration) Act, 1965. It was observed in the said case that Section 20, of the Civil Procedure Code, 1908, is general law which does not affect special provisions of special law. There cannot be any quarrel over the proposition. In the present context, the general law is contained in Arts. 5 and 6 of the Portuguese Civil Code (Family Laws) and the provisions of the Child Marriage Restraint Act are special law. The provisions of special law cannot, therefore, be deemed to be affected by any provisions of the general law. As already pointed out, by the provisions of the Child Marriage Restraint Act, the provisions of Arts. 5 and 6 of the Portuguese Civil Code do not stand repealed, but still are in operation. The question which remains is the question of giving harmonious interpretation to the provisions of the two statutes and not to consider the repeal of one statute by the provisions of the other statute, as there is no specific repeal incorporated under the provisions of the either statute.
Similarly, the ratio laid down by this Court in Gangadhar Narsingdas Agrawal v. Alina D’costa E Pinto, 1989 (2) Goa Law Times 118, has no application, as there is no question of any repeal in the present matter.
I, therefore, feel that the provisions of the two enactments are required to be harmoniously interpreted and applied. As the provisions of Arts. 5 and 6 of the Portuguese Civil Code (Family Laws) do not stand repealed in respect of the ages of marriage, the marriage performed under the provisions of Art. 5 is a valid marriage and does not stand invalidated by the application of the provisions of the Child Marriage Restraint Act. In view of the decisions of this Court and of Orissa, Madras, Calcutta, there is no doubt that the marriage performed in contravention of the Child Marriage Restraint Act is a criminal and unlawful act and is punishable under the provisions of the said Act. The Courts have taken a view that even the expenses incurred for such an unlawful marriage cannot be deemed to be for the purposes of any legal necessity. It is abundantly made clear that the marriage performed in violation of the provisions of the Child Marriage Restraint Act, though unlawful for the purposes of that Act, is valid for all other purposes.
Having regard to the history, which resulted in incorporating and passing a Legislation, like that of the Child Marriage Restraint Act, the learned trial Judge should have refrained from entertaining such an application and interfering therein in order to remove the impediments. The power to remove the impediment cannot be exercised to give a legal colour to an unlawful act. In my view, the learned trial Judge should not have exercised jurisdiction in removing the impediments.
There is one more aspect, which is required to be considered in view of the provisions of Art. 3 of the Code (Family Laws). Art. 3 provides that all Portuguese shall solemnize the marriage before the respective officer of Civil Registration, under the conditions and in the manner established in civil law, and only such marriage is valid. The marriage performed in contravention of the Child Marriage Restraint Act is still a valid marriage. The marriage will have to be regarded as valid even for the purposes of Art.3. The marriages, which are valid, but which may be in contravention of the provisions of the Child Marriage Restraint Act, will, therefore, be required to be registered under the provisions of Art. 3 of the Code (Family Laws) by the officer of the Civil Registration.
The marriage so registered under Art. 3 is a valid marriage, but the said marriage has taken place in violation of the provisions of the Child Marriage Restraint Act. The punishment for such marriage as incorporated in the provisions of Sections 3, 4, 5 and 6 of the Child Marriage Restraint Act will still follow, in spite of the marriage being registered marriage. The punishment will have to be awarded under the provisions of the Child Marriage Restraint Act, even to the spouses involved in the marriage. The marriage, after conviction and punishment, also does not, or, cannot be deemed to be valid marriage. Even after the conviction and punishment, the marriage remains valid marriage.
In the present case, though the learned trial Judge should not have intervened to remove the impediment under Article 5, to give a legal colour to an unlawful act, but the fact remains that the order was passed in the year 1992. The parties approached the Court, believing that knocking the doors of the Court under Art. 5 is still open for them, as the provisions of Art. 5 are not suitably amended to that effect. The anxiety of the Applicants to get married and get the marriage registered in the background in which they applied was considered by the learned trial Judge while removing the impediment. As the learned trial Judge should not have intervened in the matter, there was no question of giving any direction to the Civil Registrar. However, the Civil Registrar was directed to register the marriage and, accordingly, the Civil Registrar has registered the marriage. As I have already taken a view that the marriage, though performed in contravention of the Child Marriage Restraint Act, is a valid marriage and can be registered, or, in other words, capable of being registered by the concerned Civil Registrar, there is no necessity to upset the registration of the marriage of the Respondents Nos. 1 and 2 by the Civil Registrar, Vasco-da-Gama, Goa, on the ground that the Civil Court exercised powers in contravention of the Child Marriage Restraint Act.
In the peculiar background of this case, the authorities may not proceed to prosecute Respondents Nos. 1 and 2, now after lapse of couple of years, and after the directions were given by the learned Civil Judge, the marriage is registered by the Civil Registrar. This shall not be treated as precedent.
This Appeal is accordingly disposed of, which no order as to costs.
O. accordingly.
