Section 45 of The Indian Christian Marriage Act, 1872
Petition where person whose consent is necessary is insane, or unjustly withholds consent.
If any person whose consent is necessary to any marriage under this Part is of unsound mind, or if any such person (other than the father) without just cause withholds his consent to the marriage, the parties intending marriage may apply by petition, where the person whose consent is necessary is resident within any of the towns of Calcutta, Madras and Bombay, to a Judge of the High Court, or if he is not resident within any of the said towns, then to the District Judge. Procedure on petition.-- And the said Judge of the High Court, or District Judge, as the case may be, may examine the allegations of the petition in a summary way; and, if upon examination such marriage appears proper such Judge of the High Court or District Judge, as the case may be, shall declare the marriage to be a proper marriage. Such declaration shall be as effectual as if the person whose consent was needed had consented to the marriage; and, if he has forbidden the issue of the Marriage Registrar's certificate, such certificate shall be issued and the like proceedings may be had under this Part in relation to the marriage as if the issue of such certificate had not been forbidden.
Summary
- If a person whose consent is required is of unsound mind, the couple can petition a judge to declare the marriage proper.
- If a person whose consent is required (except for the father) refuses to consent without any just cause, the couple can also petition a judge.
- If the person refusing or unable to consent lives in Calcutta, Madras, or Bombay, the petition must be filed with a High Court Judge.
- If that person lives anywhere else in India, the petition must be filed with the District Judge.
- The Judge will examine the petition in a quick, summary way to decide if the marriage is proper.
- An official judicial declaration that the marriage is proper has the same effect as if consent had been given, overriding any protest.
Practical examples
FAQ
1. Can a couple petition the court under Section 45 if the minor's father is of sound mind but refuses to give consent?
No, the law specifically excludes the father from the rule about withholding consent without just cause. A petition for withholding consent can only be filed against other guardians or the mother.
2. Under what circumstances can a father's lack of consent be bypassed under Section 45?
A father's lack of consent can only be bypassed if he is of unsound mind.
3. How do the parties know whether to file their petition with a High Court Judge or a District Judge?
It depends on where the person whose consent is necessary resides. If they live in Calcutta, Madras, or Bombay, the petition goes to a High Court Judge; otherwise, it goes to the District Judge.
4. What is the legal effect of a court's declaration under Section 45?
The declaration serves as a full legal substitute for the required consent, and the Marriage Registrar must issue the certificate even if a protest was previously entered.
Test yourself
1.Under Section 45 of The Indian Christian Marriage Act, 1872, which of the following persons cannot be petitioned against for withholding consent without just cause if they are of sound mind?
2.Under Section 45 of The Indian Christian Marriage Act, 1872, where must the petition be filed if the person whose consent is necessary resides in Calcutta?
3.Under Section 45 of The Indian Christian Marriage Act, 1872, what is the procedure the judge must use to review the petition?
4.Under Section 45 of The Indian Christian Marriage Act, 1872, how does a court's declaration of a proper marriage affect a protest entered under Section 44?