1. This is a suit of a very unusual character. It is brought for the recovery of the balance of the sum of Rs. 5,000 which the plaintiff alleges to be due under an agreement made on the 3rd October, 1864, between him and the representatives of one Jagjivan Hansraj. Jagjivan was the eldest of three brothers whose mother had been put out of her caste he Lovana caste, for misconduct. The re-admission of the sons, together with their marriage to girls of the caste, was the subject-matter of the agreement. At the date of the agreement and down to 1869 the plaintiff was head of one of the sections and manager of the whole caste. Previously to this agreement of 1864, on which the present suit is brought there had 'been an earlier oral agreement of which an abstract is found signed by the parties in the plaintiff's books, dated the 12th April 1862-This first agreement was made between Jagjivan, his father and his brothers, and not only the plaintiff on the other side but also the heads of three other sections of the caste. The dispute is expressly described as 'a caste dispute,' and the family is to be readmitted on their giving a feast and making a present of caste vessels.
2. This earlier agreement is recited in the main agreement, which, however, is made with the plaintiff alone. But it is made with him in his capacity as setia, or head of his section of the caste, and also expressly in his capacity as manager of the whole caste property, whilst the money to be paid for re-admission is to be expressly applied for the purchase of vessels for the use of the caste. 'Unless,' says the agreement, 'some moneys for making vessels be fixed and paid to the people of all those five sections their caste-intercourse cannot be established.'
3. This agreement, so far as it concerns re-admission into caste, is quite within the law. I find in Steele's Law of Caste, p. 149: 'The caste may re-admit into caste privileges the children of excluded persons on the petition and an investigation into their case;' and, p. 148, 'Re-admission into caste generally depends more on the ability of the party to pay fine or, provide an expiatory entertainment than the enormity of the offence.' But I have searched in vain in Steele, Cole-brooke, West and Buhler Mayne, Macnaughten, Strange, and Stokes', translations of Hindu law books for any recognition of, or even reference to, a system of what is celled, in English legal phraseology, 'marriage brocage.'
4. It appears, from the recital of the second agreement, that the family had only obtained, up to that date, re-admission into four sections of the caste and that the otter five sections still refused them equality in caste privileges. The second agreement was, therefore, made. By it Jagjivan--bound himself to pay Rs. 5,000 after deduction of (1) Rs. 861 'already' advanced by Jagjivan under the first agreement; (2) the expenses of caste dinners which might have to be given; (3) money paid to fathers-in-law for the marriage of the three brothers to their daughters. The balance found due is to be paid to the plaintiff, who is to purchase with it caste utensils to be held by his own section, but for the use of the whole caste. After carefully considering all the evidence I am of opinion that the plaintiff did successfully exert himself to obtain the re-admission of Hansraj and his brothers into the caste. It was sufficiently proved, also, that the plaintiff was the go-between who brought about the marriages of two of the brothers with girls of the caste. Both facts are established even by the evidence for the defence.
5. The questions really in doubt are, first, whether the action is maintainable in law, and, secondly, whether the defendants have not already paid the sum claimed by the disbursements indicated by the agreement.
6. Before I discuss the points raised in argument I will consider one which was not raised at the hearing at all. This argument was made secretly by the head of caste. To reveal it, he said, would spoil the whole transaction. Yet the contract was made in his capacity as manager, and the compensation for his services was expressly to be devoted to caste purposes. The agreement was in greater part carried out in 1865. The promised 'moneys for making caste vessels' would be completely due as soon as the third brother was married But this third marriage was delayed. It did not take place for fourteen years Meanwhile the plaintiff fell into disfavour with his caste-brethren, suspicion was thrown upon his management, and in 1869 be was ejected from the post by the High Court, Could he, after that dismissal, bring a suit on an agreement made with him nominatim (see the recital) as holder of the office of manager, without the concurrence of his successor? The agreement was made with him in his representative, not his private, capacity. The benefit accrued, not to him, but to the caste. It was for the caste to say whether they wished to enforce its terms. The plaintiff is no longer their spokesman. Before he had performed the agreement in its entirety he had lost his position as their representative. His successor alone could express their wishes. That successor appeared and told the Court that those of the lenders of caste with whom he had spoken, disapproved, as he did himself, of this suit. Under these circumstances I do not think the suit maintainable.
7. But I do not base my decision on this point alone. There is another objection to the suit and one of more importance from a public point of view.
8. Was this contract, in so far as it promised money payment for the negotiation of a marriage by a third party, immoral and contrary to public policy P In England such a contract would not be enforced at law--Kean v. Potter 3 P. Wms. 76; Story's Equity Jurisprudence, plac. 260-261. It would be held to be against public policy and public interest as having a tendency to cause matrimony to be contracted as a mere matter of bargain and sale, 'a kidnapping into conjugal servitude,' as one of the Judges expressed it. It was contended that such an argument did not apply in India. The asura form of marriage, which is legal among the lower castes, is no doubt, nothing more than the purchase of a wife from her father by the husband. As long as the custom of infant marriages is maintained, mutual affection and choice cannot be the basis of marriage. But I do not think it follows that the English rule can have no raison d'etre in India-Although custom and local law in this country may be defective in the matter of marriage, that is no good reason why an additional evil should be engrafted upon them. I had no proof given me that 'marriage brocage' is an established usage in India. I can find no recognition of it in the reports. I think it is immoral and against public policy, even in the present state of matrimonial relations in India. Marriage brokers should not be given a legal status such as would enable them to enforce their contracts by law. The tendency of such a decision would be to still further degrade the position of women and to perpetuate the inequality of their relations with the other sex. In my opinion, the contract is void under Section 23 of the Contract Act, and to this I would add, as an additional authority, the following passage from Narada: 'And let the king who desires prosperity repress sinful proceedings which are unauthorized by moral law'; and the Hindu commentator quoted by Colebrooke defines 'sinful proceedings' as 'acts not productive of good.' See Colebrooke's Digest, sloka 27,II. 301.
9. It is not necessary for me to decide the other legal questions which were raised at the hearing, nor is it necessary for me to go into the facts. My judgment is for the defendants, with costs, although it may be useful to add that the evidence clearly shows that the amount claimed, Rs. 3,149 of the claim, even if legal, ought to be reduced by at least Rs. 2,200.