ROSE FERNANDEZ Vs. JOSEPH GONSALVES

JUDGEMENT

(1.) This suit has been filed by the plaintiff, who has now attained majority, for recovering damages for breach of contract of marriage made by the defendant with her and her father. There is no dispute as to the facts in the case, and although the defendant's counsel in his cross-examination tried to elicit facts with a view to show that the contract of marriage was by mutual consent cancelled and abandoned, the defendant has not ventured to go into the witness-box or lead any evidence to substantiate the said allegation. I must, therefore, take it that the contract of marriage, which is admitted by the defendant, was subsisting at the date the defendant admittedly married another lady in the year 1921 and that he has committed a breach of the contract. The defendant's counsel, however, has taken up a point which, if decided in defendant's favour, goes to the very root of the case. The point is that the pontract in suit was either made by the defendant with the plaintiff or by the defendant with the plaintiffs father, that if it was made by the defendant with the plaintiff , the contract is void as having been made with a minor, on the authority of Mohori Bibee V/s. Dharmodas Ghose,(1903) I.L.R. 30 Cal. 539 and on the other hand, if the contract was made by the defendant with the plaintiff's father, the plaintiff cannot maintain the suit, she not being a party to the contract. If either of the points is decided in favour of the defendant, the suit will necessarily fail.

(2.) Now, as to how the contract was entered into, there is no doubt in my mind that the contract was entered into by the defendant with the plaintiff's father as the guardian of the plaintiff. No doubt the plaintiff was a consenting party; but she could not herself have entered into the contract she being then only about thirteen years of age. The facts proved as to the making of the contract are as follows:-- The plaintiff's father and the defendant were employed in the docks and thus the defendant came to know the plaintiff. He asked the plaintiff's father to give the plaintiff in marriage to him and he also asked the plaintiff to marry him. Both plaintiff and plaintiff's father agreed. This was about a month or so before the writing of May 26, 1919, passed by the defendant. It appears that on that day the defendant desired that the plaintiff should go out with him as his fiancee. The plaintiff's father objected. Thereupon the defendant passed the writing, which has been put in as Exh. A, whereby he agreed to marry the plaintiff within two years and to pay Rs. 2,000 by way of damages if he failed to do so. He gave the said writing to the plaintiff's father as the natural guardian of the plaintiff", and the plaintiff's father thereupon allowed the plaintiff to go out with the defendant as desired by him. Upon these facts I hold that a contract of marriage was entered into between the defendant on the one hand, and the plaintiff's father on the other acting as guardian of the plaintiff and on her behalf.

(3.) The next question for consideration is whether the father can enter into such a contract as guardian of the minor on her behalf so as to bind her and whether such a contract is for the benefit of the minor. Both here and in England many contracts for marriage are made while one of the parties is a minor. In England the question arose as to whether in a case where one of the contracting parties was a minor, the minor could claim damages for breach of such a contract. The question was decided in Holt V/s. Ward,(1732) 2 Stran. 937. and that is good law uptil now. The Court had there no difficulty in arriving at that conclusion because in England the contracts of minors at that date were held under common law to be voidable and not void, that is to say, the minor could enforce performance of the contract as against the other adult party, but the adult party could not enforce it against the minor. Thereafter the Infant's Relief Act of 1874 was passed which made certain contracts by minors mentioned therein void. That Act, however, left contracts of marriage untouched, and, therefore, even today in England, contracts for marriage made by a minor are voidable and not void. In India up to the decision of the Privy Council in Mohori Bibee V/s. Dharmodas Ghose although with some conflict, it was held that the contracts of minors were voidable. If that had been the state of law, there would have been no difficulty whatsoever in this case but, on the wording of the Indian Contract Act, their Lordships of the Privy Council held that all contracts of minors were void and not merely voidable. The question there was of a contract entered into by the minor himself, and it was a contract with regard to property. Whether their Lordships of the Privy Council would have applied the same principle to a contract of marriage is to my mind very doubtful; and, so far as I am concerned, unless there is an authority on the point which is absolutely binding on me, I am not prepared to hold that the contract or marriage made on behalf of a minor by a person, who is the natural guardian of the minor and who is the only person who could enter into such a contract, is void. The principle on which I bold the contract in this case valid is the principle which has been laid down subsequent to the Privy Council decision in cases where the Courts in India have tried to give the force of contract to agreement made by the guardian of a minor on his behalf, where the guardian has power to enter into such agreement so as to bind the minor and the agreement is for the minor's benefit. There are other cases in which the Courts in India have tried to enforce the contract of an adult party with a minor against the adult party where the consideration proceeding from the minor has been completely executed and nothing has been left to be done by the minor and the only thing left is the performance of the contract by the adult party. Mr. Justice Srinivasa Ayyangar in Raghava Chariar V/s. Srinivasa Raghava Chariar,(1916) I.L.R. 40 Mad. 308 enunciates that principle. I may say at once that there is no question here of the minor having carried out her part of the contract and the only part remaining to be carried out being the promise on the part of the adult party. The promise of the defendant to marry had still to be carried out so that at the date of the suit there was the promise of the plaintiff which was executory and not executed. Mr. Poonawalla, however, referred me to certain observations at p. 324 of that report to be found in the judgment of Mr. Justice Srinivasa Ayyangar which are to the effect that "where consideration moves from a third party, there can scarcely be any doubt that a promise made to a minor by an adult would be enforceable by him." And as an example, he says:-- if a father gives consideration and requires the promisor to pay money or do some other thing for the benefit of his minor son, the minor son can enforce that promise. Further on he says:-- Where the consideration for the promise of the adult is a promise by the minor, inasmuch as the minor cannot make a promise enforceable in law, the consideration necessarily fails, ... [and] if, however, at the time when the promise of the adult is sought to be enforced by the minor, the minor has porformod his promise and that performance has been accepted by the adult, I should hold that the minor can enforce the promise.