Punishing Hindus under two heads Unconstitutional

Resp. Mr. N.K. Assumi,  The two remedies are operating under different statutes, in different set of situations and cognizable in different situations.  Under Hindu Marriage Act, if the marriage is performed in contravention of S.5(iii), it is not void ab initio, but is voidable at the instance of either party, if the party claims that consent of that party is obtained by fraud or coercion in respect of material fact of the respondent.  Hence, the offence is cognizable at the hands of the other spouse.  On the contrary, if the parties are minor and marrying on their free will, may be under misunderstanding or fraud as far as age is concerned, a third party can inform the police and it being a cognizable offence under Child Marriage Restraint Act, police can take cognizance in such case.  If there is no case under Child Marriage Restraint Act, then, there may be case under Hindu Marriage Act at the instance of the either spouse.  However, if there is a case under Child Marriage Restraint Act, making any further case under Hindu Marriage Act does not arise.  Though the remedies appear to be one and the same, they operate under different set of situations.

very clear reply from deepak sir

Third party can not question the marriage.I just want to know whether Hindus can be punished under bothh acts, simple, so just answerd it without beating about the bush.,

For your kind imnformtion, contravention of sub clause  (iii) of section 5 is neither void nor voidable but falls under section 18 the penal section. So where are the Hindus in this areas?

GOOD REPLY  FROM DEEPAK SIR

can be prosecuted under both but punishment will not eceed n will be punished under one which have higher punishment if they have unequal penal punishment.

Contravention of sub clause (iii) of section 5 does not falls under section 11 or 12 of the HMA that speak about void and voidable marriage: and is punishable under section 18 of the HMA and if they are punished with further penal sections under the Child Marriage Restraint Act 1929 hindus will suffered more than other non hindus. This is unconstitutional.

To,

Adv. Mr. N k Assume,

Under The Hindu Marriage Act Sec. 18 . Punishment for contravention of section 5, subclause (iii), is

“with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both”

Under The Child Marriage Restraint act, 1929 punishment is "simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both” moreover the offence is cognizable under C.R.P.C.

Yes Mr. Assume, you are right as because a minor Hindu is governed by both the set of laws, whereas, a non Hindu governed only by the Child Marriage Restraint act, 1929.

There is a scope of argument, as because under Art 14. of The Constitution of India, The State is denying to the effected person equality before the law and the equal protection of the laws. & under Art.15 of The Constitution of India, The State discriminating against the citizen on grounds only of religion.

However, as the two sets of law is there for a particular offence, therefore there is a scope to appeal that the convicted person may be punished which is softer one.

In that case, a Hindu will be benefited in the sense that Sec 18 of The Hindu Marriage Act provides fifteen days simple imprisonment whereas The Child Marriage Restraint act provides simple imprisonment of thirty days.

Wish you a happy ‘New Year’ – 2010.

I am sorry Adv. assumi,

Please read assumi instead of Asseme

Thanks.