KHIMJI KUVERJI SHAH Vs. LALJI KARAMSI RAGHAVJL

JUDGEMENT

(1.) 1.This is an appeal from a decision of Mr. Justice B.J. Wadia. The plaintiff sued for damages for breach of a contract of marriage. There was also a claim against defendants Nos. 2 and 3 for conspiracy, but as that claim was dismissed and as there is no appeal against that part of the decision, I need not refer to defendants Nos. 2 and3. Defendant No.1 is the person who was to marry the plaintiff, and I will allude to him merely as "the defendant."

(2.) THE contract as pleaded was made in 1926 by the mother of the plaintiff on behalf of the plaintiff with the defendant's) father on behalf of the defendant, and is alleged to have been ratified by the defendant. At the time of the contract the plaintiff was aged four years, and the defendant was nineteen. It is important to note that the defendant was of age at the time of the contract, because it is well settled that a guardian cannot enter into a personal contract imposing liability on a minor. (See Waghela Rajasanji v. Sheikh Masludin (1887) L.R. 14 I.A. 89. If the defendant had been a minor, it would have been necessary to show that he had entered into a contract after attaining majority adopting the contract in suit. However, as he was a major, he could ratify the contract, and there is no doubt that he did ratify the contract;, the letter written by him in 1934, exhibit A, shows this. THE contract sued on is not pleaded as specifically as it should have been. No implied terms are pleaded, and clearly there must have been implied terms. To begin with, there is the question as to the date when the marriage was to be performed. THE plaintiff being only four years of age at the time of the contract,, it is not suggested that the marriage was to be performed for some years. Since 1929, by virtue of the Sarda Act, it is an offence to celebrate the marriage of a girl under fourteen years of age. It is admitted that it was an implied term of this contract that the marriage should be performed within a reasonable time after the plaintiff attained marriageable age. THEre is also in Hindu law an implied term in a contract of this sort that when the time arrives for the solemnization of the marriage, the husband, at any rate, shall be suitable as a spouse. THE texts on the subject are verses 26 and 27 of Section XI of chapter II of the Mitakshara, which were quoted by this Court in Balubhai Hiralal v. Nanabhai Bhagubhai (1919) I.L.R. 44 Bom. 446, 449, s.c. 22 Bom. L.R. 143. Verse 26 says: For detaining a damsel, after affiancing her, the offender should be fined, and should also make good the expenditure together with interest. Verse 27 says: If there be good cause, he shall not be fined, since retraction is authorized in such a case. THE damsel, though betrothed, may be withheld, if a preferable suitor present himself.

(3.) IN none of those cases was the exact nature of the action considered, but in Rose Fernandes v. Joseph Gonsalves (1924) I.L.R. 48 Bom. 673, s.c. 26 Bom. L.R. 1035. which was a suit by the bride, who was a minor at the date of the contract made by her father, against the bridegroom who was a major, the bride claimed damages for breach of the contract, and in that case the nature of the suit was discussed, because it was alleged that if the contract was to be regarded as a contract made by the minor plaintiff, it was void under the decision of the Privy Council in Mohan Bibee v. Dharmodas Ghose (1903) I.L.R. 30 Cal. 539, S.C. 5 Bom. L.R. 421, P.c. and that if the contract was to be regarded as a contract between the parents, the bride not being a party, could not sue upon it. The same questions arise in this case, and we have to consider whether the decision in Rose Fernandes v. Joseph Gonsalves is right. Now, the learned Judge in that case pointed out that it is customary amongst most of the communities in INdia for parents to arrange marriages between their minor children, often when the children are of very tender age. Amongst Hindus marriage is usually confined to members of the same caste, and sometimes sub-caste, and it may happen that at the date when a husband or wife is required, there may be very few suitable boys or girls available; therefore, a prudent parent makes arrangements for the marriage of his child in plenty of time. Of course, in England different customs prevail. It could not be suggested that in England a parent is entitled to enter into a contract to marry his child, still less to carry the marriage into effect, and I think that in England a suit like the present one would not lie. But the law must adapt itself to the habits and customs of the people governed by such law, unless, of course, those habits or customs are held to be opposed to principles of justice, equity and good conscience. I think it would be wrong in INdia to hold that this practice, which is so common, of arranging marriages between children who are under age, is contrary to principles of justice, equity and good conscience. It is according to the habits and customs of the people. I should, therefore, be very reluctant to hold that the decision in Rose Fernandes v. Joseph Gonsalves is wrong.