A marriage below the age specified in Section 5(iii) of the Hindu Marriage Act is not null and void, but is valid and enforceable in law, and the spouse is entitled to maintenance from the other spouse.

Judgement

JUDGMENT:- The defendant in a suit for maintenance has preferred with appeal.

2. The plaintiff s case, in short, is that she is the legally married wife of the defendant; after her marriage in April, 1967, she stayed with the defendant for two years; thereafter the defendant ill-treated and assaulted her; and at last drove her away from his house in 1969 and never allowed her to stay in his house. In March,1972, the defendant again married another woman named Sashi alias Jibani Dei, with whom the defendant is still staying as husband and wife in his house.

3. The defendant s case is that he never married the plaintiff nor lived with her in his house for any time. According to him, after the death of his first wife Nayana alias Gouri Dei, his mother, on the persuasion of the plaintiff s mother and sister, insisted on him to marry the plaintiff, but as he did not agree to the said proposal and married Sashi Dei. His mother and sister were displeased and annoyed with him and so his mother left his house and since that time she is staying in the house of her daughter.

4. The court below on a discussion and consideration of the evidence on record has arrived at the finding that the plaintiff is the legally married wife of the defendant and after marriage she stayed in the house of the defendant for a few years. On that finding and on the defendant s admission that he has married one Sashi Dei and is living with her as husband and wife, the court holds that the plaintiff is entitled to get maintenance and reasonable expenses for her separate residence from the defendant. On a consideration of the plaintiff s financial condition as disclosed in the evidence on record, the court below has ordered that the defendant has to pay Rs. 40/- per month towards the maintenance of the plaintiff and Rs. 10/- per month towards her separate resident.

5-6. Mr. D. K. Mohapatra, the learned counsel for the defendant- appellant, urges that the finding of the court that the plaintiff is the legally married wife of the defendant is incorrect and is against the weight of the evidence on record. (After discussing evidence of marriage adduced on behalf of the plaintiff and defendant in this para and para 6, the judgment proceeded:)

7. On a careful assessment of the evidence on record I find that the evidence of marriage adduced on behalf of the plaintiff is more convincing thin that adduced by the defendant to rebut that fact. I, therefore, agree with the finding of the court below that the plaintiff has been able to establish that she was legally married to the defendant prior to the defendant s marriage with Sashi Dei, who now admittedly is living with the defendant as his wife.

8. Mr. Mohapatra contends that on the admitted case of the plaintiff that she married the defendant when she was only 12 years old, the said alleged marriage cannot be treated as a legal marriage as it contravenes one of the conditions for valid marriage laid down in Section 5 of the Hindu Marriage Act. Mr. Mohapatra contends that as the plaintiff had not attained the age of 15 years as provided under Section 5 (iii) of the said Act, the alleged marriage is not a valid marriage, and so the plaintiff is not entitled to any maintenance from the defendant. Contravention of clause (iii) of Section 5 does not vitiate the marriage as that is not one of the conditions on which a marriage becomes null and void as provided under Section 11 of the said Act. The contravention of the provision of clause (iii) of Section 5 of the Act may only result in the punishment of the marrying spouses as prescribed in Section 18 thereof, but the marriage between them below the age mentioned in Section 5 (iii) will continue to be valid in law and enforceable in court, and will not become null and void, as contended by Mr. Mohapatra. In a case for maintenance under Section 488, Criminal Procedure Code (ILR (1970) Cut 1215, Budhi Sahu v. Lohurani Sahuani) I have taken the same view. My view was refe