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TMI Blog1953 (8) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... daughter to the plaintiff's house for the marriage ceremony. The plaintiff also sent a 'palki' the next day for bringing the bride. Defendant 1, however, refused to send his daughter and demanded ₹ 800/- as there were better offers. The contract was terminated and the defendant promised to return the sum of ₹ 650/- taken from the plaintiff four days later. When the demand was made again on 16-3-44, the defendant refused to pay back the money taken by him. The plaintiff filed a criminal case under Section 420, I. P. C., but it was thrown out as being of a civil nature. The plaintiff, therefore, brought this suit for the recovery of ₹ 650/-advanced by him together with ₹ 72/- as compensation and damages for the loss and expenses incurred by him. 3. Defendant 1 denied the betrothal as well as the advance of money and pleaded that the suit was a sequel to previous enmity. His further plea was that the plaintiff was not entitled to enforce the contract and recover the advance made as the alleged contract was illegal. Defendant 2 has remained ex parte throughout. 4. The learned Munsif held that the plaintiff's case, had been amply proved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ussing the evidence of plaintiff's witnesses His Lordship proceeded:) I am unable to see any reason why all these witnesses should come and depose against the defendant. The view taken by the learned munsif who examined these witnesses and saw them is more in accord with the probabilities and is entitled to respect. I do not mean to suggest that in all cases the view of the trial court should be regarded, as infallible. But if the evidence, taken as a whole supports the view taken by the trial court, the appellate court should not, except for very compelling reasons, set aside that finding even if it takes a different view of the evidence. The reason is that the judge of first instance has the advantage of seeing the witnesses and observing the manner in which they give their evidence, which is not revealed by the written record of that evidence. On going through the evidence myself I am satisfied that the view taken by the trial court approximates nearer the truth, and I do not see adequate justification for disturbing its finding. The lower appellate court has fallen into an error of record and its estimate of the oral evidence appears to have been largely coloured by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration by the father of the bride or the bridegroom, either at the time of betrothal or at the time of marriage, is well-established throughout India. In one case it is called 'sulka', in the other, it is called dowry. The money paid by the groom to the father of the bride intended as a dower is known as 'kanya sulka' while the consideration paid by the father of the bride either in the form of jewellery or cash, is designated as dowry. The money paid to the father of the bride was originally intended to be retained by the bride as her separate property, but it would appear that in course of time the father of the bride received the amount, freely used either a part or the whole of it, either for the marriage ceremony or for his own purposes. Dr. Banerjee quotes a passage from Sir Henry Mayne's Remarks on Stridhan at page 398 of his Tagore Law Lectures on Marriage and Stridhan: Among the Aryan communities as a whole, we find the earliest traces of the separate property of women in the widely diffused ancient institution known as 'bride price. Part of this price which was paid by the bride-groom either at the wedding or,, on the day after it, went to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u law does not abolish it. The disabilities it places on the nuptial rights are sufficiently penal, and no other penalty, without express legislation, would be fair. Manu's injunction against the receipt of bride-price is as follows: No father who knows the law, must take even the smallest gratuity for his daughter, for a man who, through force, takes a gratuity is a seller of his offspring -- Ch. III -- 51. This injunction is directory and is not to be understood as a Vidhi or mandatory injunction. In the same Chapter, Section 31, the Asura form of marriage is described as follows: When the bridegroom receives a maiden after having given as much wealth as he can- afford to the kinsmen of the bride herself, according to his own will, that is called the Asura rite. In verse 54 he says: When the relatives do not appropriate (for their use) the gratuity given, it is not a sale: In that case the gift is only as token of respect and of kindness towards the maiden . It is clear, therefore, that while marriage in the Asura form is perfectly valid, the sale of the bride as such is prohibited. Moreover, there are Vedic passages in favour of the custom of purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts to sale per se -- or that it is otherwise opposed to public policy. 11. The expression 'public policy' has nowhere been denned its meaning varies from judge to judge and depends upon the facts and circumstances of each case. It has been said that public policy is always an unsafe and a treacherous ground for legal decisions. As Sir George Jessel remarked in -- the Printing and Numerical Registering Co., Ltd. v. Sampson', (1875) 19 Eq. 462 (A). the paramount public policy to consider is that you are not lightly to interfere with freedom of contract. It must not be forgotten that you are not to extend arbitrarily those rules which say .that a given contract is void as being against public policy. A court cannot invent a new head of 'public policy'. A contract may be declared unlawful on the ground that it is contrary to public policy, because, it has been either enacted or assumed to be, by common law, unlawful and not because a Judge or a Court had a right to declare that it is, in his or their view, contrary to public policy. He must find, the facts and he must decide whether the facts so found do or do not come within the principles of public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and the onus is upon him who seeks to prove that it is in the Asura form. The defendant has failed to prove that the money was paid as a bride-price. The evidence on the side of the plaintiff consistently is that it was paid to defendant 1 to meet the marriage expenses. I am unable to see anything in this transaction which is opposed to public morals. The plaintiff was in the position of the oppressed party and the defendant in that of the oppressor. There is an inequality of situation between the parties and the delictum is not par. It is only in cases where the two parties are equally at fault that the Court refuses to lend its aid to one who founds his cause of action upon an immoral or illegal contract 'ex dolo malo non oritur actio'. But courts of equity have not always followed this stringent common law rule and have given relief to the oppressed party. The rigours of Manu's injunction were considerably softened by later commentators and the receipt of bride price is recognised by Yagnyavalkya as a well-recognised custom for the Mitakshara says (Ch II, 21-28). Whatever has been expended on account of espousals by the intended bridegroom or by his father o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a promise made by the defendant that the latter would give the plaintiff his sister in marriage. The contract was broken and the girl was married to another. The referring judge doubted whether the English law on the subject can be considered applicable to this country and observed: It appears to be a common practice not only to remunerate makers or ghataks for their services, but also for the husband to pay a certain sum called 'pan' to the relatives of the wife, previous to the marriage . The Court decided that action for recovery of the money paid to the defendant would lie. In -- 'Ramchand Sen v. Andaito Sen', 10 Cal 1054 (D) the defendant, in consideration of ₹ 100/-promised to give his minor daughter in marriage to the plaintiff. The defendant failed to fulfil his part of the contract, and the plaintiff brought a suit to recover money paid as consideration for the promise. It was held that such a suit would lie: and Beverley J., said: There is nothing immoral in the contract so far as I can see. No doubt the purchase or hire of a minor girl for purposes of prostitution or concubinage is immoral, but where a legal marriage is in contempl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration money stated in a certain kebala by which he had sold certain property to the defendant. The defence set up was that the consideration stated in the kebala was fictitious and the real consideration was for payment to the defendant for his services in inducing his employer over whom he had influence, to sell some villages to the plaintiff. The Court held that the parties were in 'pari delicto' and no relief could be granted. It will be noticed that this was a case of an executed contract and the suit was for relief after the contract had been executed. The decision of that case turned on the interpretation of the words declared to be void in Section 65 of the contract Act, and has no application to a case like the one before us. 15. The view of the Calcutta High Court as indicated in the cases cited above has been consistently followed by the High Court of Patna, and I shall now briefly refer to a few of the reported decisions of that Court. In -- 'Raghubar Das v. Nataber Singh', A. I. R 1919 Pat 316 (H) Dawson-Miller, C. J. said, 'referring to the Calcutta decisions: I think it is now too late to question the validity and propriety of those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having attained the object and having fulfilled the promise, I do not think that she can avail herself of the provisions of Section 23 and recover back the property in question. Far less could the plaintiffs who had succeeded as reversioners of her husband, recover it back on that ground. In -- 'Mt. sonphula v. Gansuri' (K) where A advanced a certain amount to B in consideration of his arranging the marriage of A's brother with the niece of B, it was held that the arrangement between A and B was neither immoral nor criminal, and A was entitled therefore to get a refund of the money advanced. In that case there was a great disparity between the ages of the plaintiff's brother and the girl, but it was observed that such marriages do take place with the approval of those who are interested in the welfare of the girls. In a later case, -- 'Dharanidhar v. Kanhji' CD, the Court held that such a contract of marriage is not per se illegal or immoral, though one of the learned Judges struck a note of dissent. But the plaintiff was granted a decree on the ground that the contract had not been carried out. 16. Strong reliance was placed on the Full Bench decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bom 411 (S), the plaintiff had promised to pay ₹ 18007-to the defendant and had actually made a payment of ₹ 750/- when the marriage contract was terminated. Their Lordships held that the transaction between the parties had not proceeded beyond the stage of agreement and that a suit would lie as the defendant was obliged by ties of natural justice and equity to refund the money when no material part of the illegal purpose had been carried into effect. In a later case, -- 'Balubhai v. Nanalal', AIR 1920 Bom 225 (T), where the defendants contended that the retraction of the proposal was inevitable on account of the ill-health of the bridegroom, the Court held that though the defendants could not be fined if there was good cause for retraction, yet they were liable to pay the expenses incurred by the bridegroom or his father during the betrothal. 18. The Allahabad and Lahore High Courts also have adopted the view taken by the Calcutta High Court. In -- 'Bhagirathi v. Jokhu Ram', 32 All 575 (U), it was held that an alienation of family property for raising sulka or bride-price was held to be binding on the sons of the alienor; see also --'Bhan S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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