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Abdul Razak and Abdul Gafoor Vs. Mahomed Hussen Dalvi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1209 of 1915
Judge
Reported in(1917)19BOMLR164
AppellantAbdul Razak and Abdul Gafoor
RespondentMahomed Hussen Dalvi
DispositionSuit dismissed
Excerpt:
contract-breach of promise of marriage-damages for the breach-suit not maintainable under mahomedan law.;under mahomedan law, a suit to recover damages for breach of promise of marriage does not lie. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state..........defendant replies that he did not agree to this proposal.3. the first issue raised is: whether a suit for breach of promise of marriage will lie under mahomedan law if by this it is meant that in a suit for breach by the father of the girl of his promise to give the girl in marriage the plaintiff cannot recover the damages peculiar to an action for breach of promise of marriage under the english law i entirely agree with the proposition. the contract in respect of which by the english law a plaintiff may recover such damages for breach of a promise to marry is one which, in my opinion, arises from personal status. no authority from the mahomedan law has been cited to me to justify the allowance of such damages in cases where the parties are mahomedans. in an action for brech of promise.....
Judgment:

Kemp, J.

1. This is a suit by the plaintiff for damages for breach by the defendant of his contract to give his daughter in marriage to the plaintiff, for the return of certain ornaments and clothes presented by the plaintiff to the defendant's daughter in anticipation of the proposed marriage and for expenses incurred in connection with the agreement for the marriage.

2. The parties admit that a betrothal ceremony took place in July 1915 but they are at variance on the terms arranged between them before the ceremony. Plaintiff says that he undertook to settle certain immovable property for the benefit of the girl upon certain trusts and to execute a formal deed of settlement on the date of the marriage, whilst defendant's version of the arrangement is that plaintiff was to make an absolute gift of his Mahim property to the girl. Plaintiff also states that on disputes arising in consequence an arrangement was arrived at subsequent to the betrothal ceremony by which the plaintiff executed a promissory note for Rs. 2700 in favour of a third party who was attempting to bring about a settlement on the understanding that the note should be returned to him on his purchasing within six months from the date of the marriage immovable property in the name of the defendant's daughter. The defendant replies that he did not agree to this proposal.

3. The first issue raised is: whether a suit for breach of promise of marriage will lie under Mahomedan law If by this it is meant that in a suit for breach by the father of the girl of his promise to give the girl in marriage the plaintiff cannot recover the damages peculiar to an action for breach of promise of marriage under the English law I entirely agree with the proposition. The contract in respect of which by the English law a plaintiff may recover such damages for breach of a promise to marry is one which, in my opinion, arises from personal status. No authority from the Mahomedan law has been cited to me to justify the allowance of such damages in cases where the parties are Mahomedans. In an action for brech of promise of marriage in English law no attempt at fixing any measure of damages can be made. Such actions stand on a par with actions for libel as to the range of topics in which counsel are allowed to indulge : Mayne on Damages, Sixth Edition, p. 502. As was stated by Bowen L.J. in Finlay v. Chirney (1888) 20 Q.B.D. 494, 'the action [for breach of promise of marriage is one] which is based on the hypothesis of a broken contract, yet is attended with some of the special consequences of a personal wrong and in which s damages may be given of a vindictive and uncertain kind, not merely to repay the plaintiff for temporal loss but to punish the defendant in an exemplary manner.' I see no reason to introduce this anomaly to Mahomedans whose views of the relationship of the married parties to one another and of the negotiations for bringing about a marriage are so different to those of persons governed by the English law.

4. When, however, I say that the principle on which damages which are allowed by the English law as peculiar to the breach of a contract to marry should not be applied to the case of the breach of a promise for valuable consideration made by the father of a Mahomedan girl to give her in marriage I am not to be taken as saying that the ordinary results which flow under Section 73 of the Indian Contract Act from the breach of a contract should not follow in this case as well as in the case of any other contract. Under that section the promisee is, on breach by the promisor of his contract, entitled to receive from him compensation for any loss or damage caused to the promisee by such breach or which the parties knew when they made the contract to be likely to result from the breach of it. Moreover, under Section 65 of the Indian Contract Act the promisee is entitled to the return of his consideration or compensation in respect of it as on a failure of consideration. These are principles which are applicable to every contract and have nothing to do with personal status.

5. Indeed the right to the return of money, ornaments, clothes, etc., on a failure to perform the marriage is one which is recognized by Mahomedan law (Macnaghten's Principles and Precedents of Mahomedan Law, Chap. VI, p. 250). Nor do I see why as the ornaments and clothes in this case were sent to the defendant's house he is not the proper party to be sued for their return. No point, however, has been made by the defendant of this.

6. Only so far, therefore, as the plaintiff in this case claims a lump sum of Rs. 2000 as damages for breach by the defendant of his contract with the plaintiff do I hold that he is not entitled to succeed. The suit must proceed with regard to the other reliefs prayed for.

[The hearing of the suit was then proceeded with and the suit was dismissed with costs on the 12th of November 1916]


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