Mukherjea, J.@mdashThis appeal is on behalf of the Plaintiff and it arises out of a suit to enforce a simple mortgage bond executed on the 26th
April, 1931. The two Defendants are two brothers and the mortgage was executed by Defendant No. 1 himself and by the mother as guardian of
Defendant No. 2 who was still a minor at the date of the suit. The bond recites that the money was necessary to defray the marriage expenses of
Defendant No. 2. The defence was that there was no execution and attestation and no payment of consideration and that the marriage of the infant
was not a legal necessity which would justify his guardian in mortgaging any portion of his estate. In the trial Court and after the hearing was closed
the trial Judge allowed another point to be raised by the Defendant as a pure question of law, namely, that the money being lent for the purpose of
helping a child marriage which was in contravention of the Child Marriage Restraint Act of 1929, the consideration for the loan was illegal and
hence the Plaintiff could not succeed in the suit. The trial Court came to the conclusion that the marriage of the minor was not a legal necessity
which would justify an alienation of the minor''s estate and as the consideration was illegal as it was calculated to defeat the provision of the Child
Marriage Restraint Act, there could be no decree against the minor. As against the adult Defendant a simple money decree for Rs. 300 was given
without any interest. The Plaintiff took an appeal to the Court of appeal below which affirmed the judgment of the lower Court and dismissed the
appeal. It is against this decision that the present second appeal has been preferred. Mr. Das, who appears on behalf of the Appellant, has raised a
two-fold contention. In the first place, he has argued that the marriage of Defendant No. 2, even though he was a minor, was a justifying necessity
according to Hindu Law which justified the guardian in mortgaging his property, and in support of this contention he has relied upon the decision of
the Bombay High Court in the case of Sundrabai v. Shivanarayana I. L. R. 32 Bom. 81 (1907). In my opinion, this contention cannot be accepted.
It is true that marriage is a sacrament or sanskar in Hindu Law and the only sanskar for those who are not twice born. The Hindu Law, however,
does not sanction early marriages of males and the text of Manu which is the authorty on this point lays down the law as follows:-
Let a man of 30 years marry an agreeable girl of 12 years or a man of thrice 8 years a girl of 8 years; one marrying earlier deviates from duty.
(Manu Ch. IX, verse 94).
2. The text of Manu has been explained by his annotators as prescribing no limit of age for the marrage of males but as recommending that the
bridegroom should be older than the bride. Be that as it may, it cannot be said that there is a rule of Hindu Law which makes it a duty on the part
of the parents or guardian of a minor male to marry his ward or child before his attaining the age of puberty. With regard to daughters the position
is different and there is an express text which lays down that if a girl be not given in marriage when she has reached the 12th year, her mother and
father as well as her brothers go to the infernal region. (See Yama, 22 and 23). Mr. Justice Chandravarkar in the case referred to above adverted
to the fact that the Hindu Law neither sanctioned early marriages of males nor, in fact, made it a duty on the part of the parents and guardians to
marry their sons and wards before they attain the age of majority. The learned Judge, however, was of opinion that such practice was sanctioned
by usage and on the footing of usage the practice was held to be valid. It is certainly one thing to say that it is permissible in law or usage to marry a
boy who is still an infant and another thing to say that it is a pressing necessity which justifies the guardian in alienating the minor''s property for that
purpose.
3. I am of opinion that after the Child Marriage Restraint Act of 1929 was passed, it cannot be held that the usage which has been disapproved of
by the legislature would furnish a ground upon which a case of imperative legal necessity could be built up. I hold, therefore, that the Courts below
were perfectly right in holding that there was no pressing necessity which justified the alienation of the minor''s property.
4. The other question which has been raised by Mr. Das relates to the propriety of the decisions of the Court below which have concurrently held
that the consideration for the marriage was illegal within the meaning of sec. 23 of the Indian Contract Act. The question, as I have stated above,
was not raised in the written statement nor was there any issue framed upon it. The Child Marriage Restraint Act undoubtedly does not render the
marriage invalid. If it is celebrated in India, those promoting it or permitting it will incur certain penalties provided by the Act. As Mr. Justice
Panckridge said in the case of Pan Mal Lodha v. Gyd Mal Lodha I. L. R. 63 Cal. 1153 (1936), the legislature has introduced certain penal
provisions with a view to show its disapproval of such marriages, apparently on the ground of their being socially injurious. But the question is:
supposing a creditor advances money to enable an infant to marry in violation of the Act, is the consideration rendered illegal under the provision of
sec. 23 of the Indian Contract Act? Obviously, the creditor himself does not come within the mischief of sec. 5 or sec. 6 of the. Child Marriage
Restraint Act which penalises those who perform, conduct or direct a child marriage or does any act to promote the marriage or permits it to be
solemnised. It seems to me, therefore, that the advancing of money by a creditor is not something which is per se made punishable under the law. It
may be said, however, that by advancing the money to the lawful guardian of the minor for the purpose of promoting an infant marriage which the
law disapproves of and for which penalty has been prescribed for the promoter and( the guardian, the creditor was doing something which might
directly or indirectly enable the promoter to defeat the provisions of the law. I do not think it is necessary for me to express any final opinion upon
this point. For, as I read the bond, it is not clear from the recitals of the same that the money was actually taken for conducting or celebrating the
marriage of the infant, and it may be that the marriage was already celebrated and the money was borrowed for the purpose of defraying the
expenses which had been incurred long before. There is no evidence either one way or the other upon this point and if really the money was not
advanced for the purpose of enabling the guardian to conduct or to promote the marriage, I do not think it comes within the mischief of sec. 23 of
the Indian Contract Act.
5. As this question was not raised by the Defendant at any stage of the suit and as there is no evidence upon this point, it is impossible for me to
say upon the materials on the record that the matter does definitely come within the mischief of sec. 23 of the Indian Contract Act. I would,
therefore, vary the decree of the lower Appellate Court to this extent, namely,'' that there would be a mortgage decree in place of a simple money
decree against Defendant No. 1 alone. Defendant No. 2 or his property cannot be made liable, as there was no necessity justifying the loan. The
mortgage money would carry interest at the rate of 9 per cent, per annum from the date of the bond up to the date of the expiry of the period of
grace which is fixed at three months from this date. After the period of grace is over interest will run at 6 per cent, per annum. Subject to this
variation, the appeal is allowed and the decree of the lower Appellate Court could be modified accordingly. I make no order as to costs of this
Court as well as of the lower Appellate Court. The Plaintiff will be entitled to the costs of the trial Court.