GIRDHARI SINGH Vs. NEELADHAR SINGH

JUDGEMENT

(1.) THE case of the plaintiff, appellant is, that his wife died in 1317 Fasli and he was anxious to marry a second time, that the defendants came to his house and said that all their land was mortgaged and that they had to pay rent to their zemindar, and that if the plaintiff paid them Rs 250, they would marry Musammat Imirti, a daughter of the first defendant, to him in the dola form. THE plaintiff agreed to pay the sum demanded. Shortly afterwards, he and his friends went to the defendants house with clothes and ornaments for the girl, worth Rs. 100, which they made over to the defendants, and the plaintiff paid them Rs. 250, the sum which they had demanded, and he also gave the defendants servants the sum of Rs. 10. THE girl was brought to the plaintiff s house, but before the ceremony of marriage could be performed, the defendants carried her off and refused to allow her to be married to the plaintiff or to give up the ornaments and clothes or to return the money which they had received. THE plaintiff has claimed a decree for Bs.100, the price of the clothes and ornaments, and for Rs. 260, the sum which was paid to the defendants and their servants. THE Munsif decreed the claim in full. On appeal, the Subordinate Judge held that the plaintiff was entitled to recover the clothes and ornament s or their value but was not entitled to recover the sum of Rs. 260, because that was paid to the defendants in pursuance of a contract which was contrary to public policy. In second appeal, the plaintiff contends that the contract between him and the defendant was not contrary to public policy. In Visvanathan v. Saminathan 13 M. 83 the plaintiff had agreed to give his daughter in marriage to the defendant s nephew in consideration of the payment of Rs. 400. It was not alleged that the money was to be dowry or settlement for the bride. Rupees 200 were paid, and the defendant gave the plaintiff a bond for the balance. In a suit on that bond, it was held that the contract was not unlawful. THE High Court held that having regard to the customs of the country, it was impossible to lay down a hard and fast rule that all contracts for the payment of money to the bride s father in consideration of marriage were immoral or opposed to public policy. THEy said that there might be cases in which such contracts might be held to be immoral, as, for instance, where money was agreed to be paid in consideration of a marriage of a very young child to an old and debauched man; but that in many cases, payment might be made to facilitate a marriage in a legitimate way and each case must be judged on its own merits. THE decision in that case was approved by this Court in Baldeo Sahai v. Jakina Kunwar 23 A. 495 : A.W.N. (1901) 155. In that case, the defendant was a man of advanced years. His brother had been married out of the brotherhood, and no member of the brotherhood of any standing would give his daughter in marriage to the defendant. THE plaintiff and her husband were poor, and they had agreed to give their daughter in marriage to the defendant, because the latter had agreed to maintain them and give them an allowance of Rs. 4 per mensem. THE Court held that the ageement could not be enforced as in the circumstances it was opposed to public policy. THE Court pointed out that on the plaintiff s own showing, she had made the marriage of her daughter a source of gain to herself and had no regard for the happiness and welfare of the child. THE Madras case which I have cited, has been overruled by a Full Bench of the same Court in Venkata Kristnayya v. Laskhmi Narayana 32 M. 185 : 3 Ind. Cas. 554 : 18 M.L.J. 403 : 4 M.L.T. 1 where it was held that a contract to make a payment to a father in consideration of his giving his daughter in marriage was immoral and opposed to public policy within the meaning of Section 23 of the Indian Contract Act. THE Court held that the question should be decided on general principles and not with reference to the special terms of the particular contract, and they observed that an inquiry in each case as to whether in regard to the terms of the particular contract, the contract was or was not opposed to public policy, would be very objectionable. In Dholi Das v. Fulchand 22 B. 658 it was held that a contract which entitled a father to be paid money in consideration of giving his son or daughter in marriage, was against public policy and could not be enforced. Both the Madras and the Bombay High Courts point out that the Asura form of marriage, as recognised by the lower castes, is nothing more or less than the purchase of a wife from her father. Though it was recognised as valid by the lower castes, it did not follow that an agreement for the payment of money on such a marriage would not be contrary to public policy. In Wazira Mal v. Rallia 128 P.R. 1889 it was held that an agreement by a Hindu to pay a sum of money to another in consideration of that other giving his sister in marriage was contrary to public policy. It is conceded that if the contract in the present case is contrary to public policy, the plaintiff is not entitled to recover. It is clear that, according to the decisions of the Madras and Bombay High Courts and the Punjab Chief Court, this suit should be dismissed. But I am bound to follow the decision of this Court, and I have to consider the circumstances of the present case. THE plaintiff says that his age is 36 and that the age of the girl is 11. THE defendants say that the age of the plaintiff is 60 and the age of the girl is 8. It has not been proved that the plaintiff is more than 36 years, and I may take it that the plaintiff s statement that the girl is 11 years of age, is correct. But it is quite clear from the plaint itself that this girl was sold by the parents to the plaintiff, because they were in want of money. It was not an arrangement made upon an ordinary treaty for a marriage, and the whole sum now in question was to be paid for the benefit of the defendants alone in order to enable them to pay their rent. It appears to me that a contract of this kind is opposed to public policy, whether it is common among the lower castes or not. I, therefore, dismiss this appeal with costs.