JANAK PRASAD Vs. GOPI KRISHNA LAL

JUDGEMENT

(1.) The question that arises in this second appeal, which is by two of the three defendants in the suit, is one of some difficulty, and unfortunately little or no assistance is to be derived from the reported decisions. The plaintiff in the suit entered into an agreement with defendant 1 that his daughter, who was then a minor, should marry defendant 3 who is the son of defendant 1 and was then also a minor. The other defendant in the suit, namely, defendant 2, is the adult son of defendant 1 and the brother of defendant 3. As usual, there was some discussion as to the amount of the tilak and eventually the plaintiff agreed that this should be fixed at Rs. 1001 and that he should also give silver and brass utensils to the value of Rs. 151. The tilak ceremony was performed at Aurangabad, where the defendants reside on 17-4-1939, and partly then and partly before that the plaintiff gave the sum he had agreed to and the utensils. On the day after the tilak ceremony was performed, and before those of the relations of the plaintiff who had gone to Aurangabad to witness it had left, the bridegroom had some kind of a fit which, on the incident being reported to the plaintiff, he thought might be an epileptic fit. The plaintiff, not unnaturally, made enquiries and satisfied himself, as he thought, that the bridegroom was subject to epileptic fits. Thereupon he rescinded the agreement or contract and soon afterwards married his daughter to someone else. Defendant 3 also apparently married another girl some time later. The plaintiff sued to recover the amount he had given as tilak. The defendants disputed his right to recover anything and contended that, even if he was entitled to recover something, he was not entitled to recover the whole amount as certain expenses had been incurred on the tilak ceremony. The learned Munsif, after dealing very carefully with this latter point, and indeed, with the suit as a whole, gave the plaintiff a decree for a sum of Rs. 909-6-9. The plaintiff, it should be said, asserted that the contract into which he had entered with the defendants 1 and 2, was vitiated by fraud, inasmuch as defendants 1 and 2, had concealed from him the fact that defendant 3, was an epileptic subject and, indeed, represented to them that he was a youth of exceptionally good physique. The learned Munsif was satisfied that this was not so. On the other hand, he was satisfied that defendant 3, had had some kind of a fit on 18-4-1939, and that in consequence the plaintiff was entitled to rescind the contract he had made or the agreement he had entered into. On appeal the learned Subordinate Judge took the same view of the matter, and I have no doubt myself that these findings of the Courts below were correct. The learned Munsif appears to have assumed that, as the plaintiff had been justified in rescinding the contract, he was entitled to recover the money he had paid less so much as had been spent on the tilak ceremony. The learned Subordinate Judge dismissed the suit as against defendant 3, but otherwise confirmed the decree of the trial Court. In doing so, the lower appellate Court observed: As regards the liability of defendant 3, it is not shown by the plaintiff how he can be made liable. The amounts paid were not paid to him personally but were paid to purchase the consent of defendants 1 and 2, for the boy's marriage.

(2.) The learned Subordinate Judge would, therefore, appear to have proceeded on the assumption that there was a contract between the plaintiff on the one hand and defendants 1 and 2, on the other and that the contract was a contract of the kind usually known as marriage brokage contracts. Mr. Sarjoo Prasad, for the appellants, contended that the contract, being a marriage brokage contract, was ab initio void and that in consequence the plaintiff could not sue to recover money paid under it. The learned Government Pleader relied on Venkata Kristnayya v. Lakshmi Narayana (09) 32 Mad. 185 That, no doubt, supports the view that a contract to make a payment to a father in consideration of his giving his daughter in marriage is immoral and opposed to public policy within the meaning of Section 23, Contract Act. It is, however, to be observed that in the order of reference the learned Judges pointed out that money paid to a father may be recovered back if the marriage does not take place. Mr. Sarjoo Prasad disputes this on the ground that Section 65, Contract Act does not apply, the contract in this case having been void ab initio and not having been discovered later to be void. It might, also, perhaps be urged that, in this case, there was part performance, inasmuch as the tilak ceremony was performed and that on that ground also the plaintiff is not entitled to recover. These are points of considerable difficulty but, in the view which I take of the matter, it is not necessary for me to decide them.

(3.) Mr. C.P. Sinha, for the respondents, in attempting to support the decision of the Courts below, relied mainly on Ram Chand Sen V/s. Andaito Sen (84) 10 Cal. 1054 and on Golabchand Parmachand V/s. Fulbai (09) 33 Bom. 411. In the former case, the defendant, in consideration of a sum of Rs. 100, had promised to give his daughter in marriage to the son of the plaintiff. The plaintiff paid him the money and subsequently he married his daughter to someone else. The suit was decreed, one, however, of the learned Judges observing that he did not consider that a marriage contract of this kind was in this country illegal. In the latter case the plaintiff promised to pay a sum of money to the defendant if the defendant married his niece to the plaintiff's son. The plaintiff apparently paid the money before the marriage took place and the marriage never took place as the bridegroom died of plague. The suit was decreed, mainly on the ground that it was in substance a suit for money had and received by the defendant to the use of the plaintiff. The learned judges reframed from expressing any opinion as to whether Section 65, Contract Act was applicable. These decisions are, as I have already said, of no real assistance to us. Was there really a contract between the plaintiff and the major defendants and if so, was it in the nature of a marriage brokage contract? When a man and a woman, both of whom are sui juris, agree to marry, there is, of course, a contract, the promise of each being the consideration for the promise of the other. But when the parents of a minor boy and a minor girl arrange a marriage between them, the position is, I think, very different. Whether a marriage eventually takes place must depend on the will of the minors and not solely of their parents. In this case, for instance, it appears that the girl announced that she would rather starve herself to death than marry the boy, because she thought he had said something very disparaging about her. The agreement between the plaintiff and the major defendants was, I think, an agreement only, a mere mudum pactum and not a contract. The custom of tilak is so universal that I find it difficult to see how it can be stigmatised as immoral or contrary to public policy. No doubt, when negotiations for a marriage between two minors take place, the guardian of the prospective bridegroom may have regard to the amount of the tilak proposed in the same way as he may have regard to the social status of the prospective bride, her looks, her state of health or her accomplishments. But, to say, that the promise to give a certain tilak is the consideration for his promise to persuade or coerce his ward to enter intothe marriage appears to me to be fundamentally unsound. In Grierson's Bihar Peasant Life, paragraph 1287, it is stated that the tilak is a present given by the family of the bride to the bridegroom. At the trial, the priest who officiated at this tilak ceremony said, apparently, that a sum of Rs. 51 in a cup was handed to the bridegroom and that he touched the other articles in token of accepting the gift. He also, he said, recited a sloka, the substance of which was that gifts were being made to the bridegroom to induce him to come to the house of the bride's father and receive the bride. If however, the tilak is a gift is it a conditional gift and, in the circumstances of this particular case, is the plaintiff entitled to recover it? It is, I am inclined to think, perhaps arguable that, having regard to its nature, it is a conditional gift. But it was the plaintiff, or rather his daughter, and not the defendant 3 who, having gone through the tilak or betrothal ceremony, refused to go through the ceremony of marriage. In England when a man gives a woman, who has promised to marry him, an engagement ring, then if she breaks the engagement she is bound to return the ring. If, however, it is the man who breaks it, she is apparently entitled to retain it. Cohen V/s. Sellar (1926) 1 K.B. 536. Under the Roman Law the position would seem to have been the same. In Sandar's work on the Institutes of Justinian, 8 edition, page 36, there occurs the following passage: The sponsalia constituted in no way a binding tie. They were, as far as law went, mutual promises to contract a tie. All that was necessary was, that the parties, and their respective patresfamilies, should consent, and that the betrothed should have attained the age of seven years. Either party wishing to renounce the engagement, which, by law, was always permissible, could do so by announcing the wish in these words-- conditions tua nonutor, and forfeiting the arroe, i.e., things given as earnest or security that the promise should be kept, if any had been given.