IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.437 of 2006 SARITA DEVI Versus THE STATE OF BIHAR & ORS ----------- 4. 25.8.2008. This application has been preferred against the judgment dated 15th April,2006 passed by Additional Sessions Judge, Lakhisarai in Cr. Appeal No.241 of 2003 thereby the learned Additional Sessions Judge has set aside the judgment of conviction and sentence dated 17.9.2003 passed by Sri Ujjawal Kumar Dubey, S.D.J.M., Lakhisarai in G.R. No.881 of 2000, Trial No.506 of 2005. The learned Sub Divisional Judicial Magistrate vide impugned judgment convicted all the opposite parties under section 498A of the I.P.C. as well as section 4 of the Dowry Prohibition Act and sentenced them to undergo S.I. for three years and fine of Rs.1,000/- under section 498A of the I.P.C. and S.I. for three months each under section 4 of the Dowry Prohibition Act along with fine of Rs.2,000/- each. In case of default of fine, they were directed to undergo S.I. for six months. Heard the learned counsel for both - 2 - the parties. It is submitted by the learned counsel for the petitioner that the impugned judgment of acquittal by Additional Sessions Judge is bad in law as well as on facts. He has wrongly set aside the judgment of conviction and sentence passed by the learned S.D.J.M. It is further submitted that the ground for acquittal mentioned by the learned Additional Sessions Judge is wholly illegal. He has acquitted the opposite parties on the ground that at the time of marriage, the petitioner and her husband were minor and hence, their marriage was void ab initio. It is further submitted by the learned counsel for the petitioner that marriage of minor is neither void nor voidable under the Hindu Marriage Act for which he has referred to sections 11 and 12 of the Hindu Marriage Act. On the other hand, the learned counsel for the opposite parties submitted that the learned Additional Sessions has rightly acquitted the opposite parties as marriage has not been proved by the petitioner. It is also submitted that under - 3 - section 5 of the Hindu Marriage Act one of the conditions for marriage is that both the parties must be major at the time of marriage and hence, the marriage of the petitioner and her husband was void ab initio since at the time of marriage, both were minor. Considered the submission of the learned counsel for the petitioner as well as the opposite parties. On perusal of the impugned judgment, it appears that in last paragraph, at page-4, the learned Additional Sessions Judge found the case factually proved but allowed the appeal and set aside the order of conviction and sentence merely on technical ground that at the time of the marriage both the petitioner and her husband were minor and hence, their marriage was void ab initio. Section 5 of the Hindu Marriage Act provides that at the time of marriage the bridegroom must have completed the age of twenty one year and the bride must have completed 18 years. However, mere breach of this condition does not make the marriage either void or voidable. This is very much - 4 - apparent from sections 11 and 12 of the Hindu Marriage Act. Sections 11 and 12 run as follows : “11. Void marriages.- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5. 12. Voidable marriages.- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:- (a) that the marriage has not been consummated owing to the impotence of the respondent; or - 5 - (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act,1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. (2) Notwithstanding anything contained in sub-section (1), - 6 - no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1), shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered, or (ii) the petitioner, has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been - 7 - instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.” The above condition of minimum age for marriage is mentioned in Clause (iii) of Section 5 of the Act. This does not find place either in Section 11 or in Section 12 of the Act. Thus, it is quite clear that marriage of minors is neither void nor voidable. It is only punishable under section 18 of the Act. The learned lower appellate court has wrongly held that the marriage of - 8 - N.H./ the petitioner with Umesh Sao was void ab initio. In the result, this application is allowed. The impugned order is hereby set aside and the matter is remitted back to the appellate court to pass fresh order in the light of aforesaid discussion of law and observation. ( Ghanshyam Prasad )