1. I am satisfied, by the evidence of the moneylender Matapadan and his book, that the petitioner Dulari has this year pledged with him the gold ornaments of the value of about Rs. 275 which he produced, on which he advanced Rs. 260 to petitioner. I do not believe her denial of these facts. Without taking the other evidence which Mr. Davar, for the respondent, was willing to give, I find that Dulari is not a pauper, and I refuse her leave to sue as such.
2. Mr. Davar has also argued that the application should be rejected under Section 407, Clause (c), of the Code of Civil Procedure, on the ground that petitioner's allegations do not show a right to sue. He relies on the passage in the judgmeat of a Fall Bench in Chatterpal Singh v. Raja Ram I.L.R. 7 All. 661 which is as follows: 'We cannot read these words of Section 407 as binding the Court's discretion to merely ascertaining whether 'the right to sue' arose within its jurisdiction, but they have in our opinion a more extended meaning, namely, that an applicant must make out that he has a good subsisting cause of action, capable of enforcement in Court, and calling for an answer, and not barred by the law of limitation or any other law.'
3. I have frequently followed this ruling in hearing pauper petitions, where the facts were clear and the law evident; where, therefore, no injustice was likely to occur from disposing of the case in the inquiry under Chapter 26 of the Code. The Court is bound to exercise a measure of caution, because the pauper is often without the advantage of the aid of counsel, and it is evident that the summary mode of inquiry may in cases of any complexity lead to important facts not being elicited or explained. This practice of the Court has probably existed before I took my seat on this Bench, as it has been acquiesced in by every counsel of experience. In some matters, as noticed by Couch, C.J., in Imperial Banking and Trading Co. v. Pranjivandas 2 Bom. H.C. R 258 there is no duty on the Court to raise an issue; in others in justice would arise if the Judge decided disputed matters of law or fact without fuller inquiry.
4. The question raised by Mr. Davar's argument is whether a positive rule of law precludes the petitioner from claiming the relief on the facts alleged by her, which are the following: In her plaint she states that she brought up one Laxmi, an orphan girl of a different caste, from infancy until her eleventh year at considerable expense, and that 'in January last, arrangements bad been made with a respectable gentleman to get the said girl married on payment to your petitioner of Rs. 2,500 in consideration of the expenses incurred by your petitioner in maintaining the said girl and supplying her with all necessaries. That the respondent bad also agreed with your petitioner to pay her Rs. 2,000 if the petitioner gave the said girl in marriage to the said respondent, who is also a Bhatia by caste.' She then alleges that the respondent induced the girl to leave her, though he has not married her, and that 'in consequence of this illegal conduct of the said respondent your petitioner has suffered loss of Rs. 2,500 which she would have received in consideration of her defraying maintenance and clothing charges of the said girl with the intended husband.' Her prayer is that the respondent may be ordered to pay her Rs. 2,500 as damages for inducing the girl to leave the house for immoral purposes without performing the necessary marriage. Petitioner does not allege that the respondent has put her to any expense.
5. At her examination she said: 'I claim to recover Rs. 2,500 from respondent, because he agreed to pay that for the girl, whom I had brought up from infancy, only for my giving her in marriage. He has taken her away without giving me money.' When I asked her what she had lost, petitioner replied that she had spent Rs. 10,000 in bringing up the girl. She demands Rs. 2,500 as a reward for giving her in marriage.
6. I may here observe that the claim is not one for damages for loss of service in consequence of seduction or abduction, and I need not consider the question on which the learned Judges differed in Ram Lal v. Tula Ram I.L.R. 4 All. 97 whether a suit of that nature would lie.
7. The bargain alleged I take to be one for payment of money to a guardian in consideration of giving a girl in marriage. In Ram Chand Sen v. Audaito Sen I.L.R. 10 Cal 1054 Garth, C.J., said he was disposed to hold that such contracts are so far void as to be incapable of being enforced by the rules of equity and good conscience, and inclined to the English rule, which makes marriage brocage contracts illegal. Beverley, J., expressed a different opinion. At the first hearing I drew Mr. Davar's attention to this case, and he has since brought to notice the judgment of my brother Scott, J., in Pitamber Ratansi v. Jagjivan Hansraj see infra p. 131 delivered on the 24th March, 1884, which deals fully with the point, and I ought, therefore, in the extreme paucity of decisions, to have been reported. The following passage shows the view that Scott, J., toot of a transaction very like that on which petitioner bases her claim: 'Was this contract, in so far as it promised 8 money payment for the negotiation of a marriage by a third party, immoral and contrary to public policy? In England such a contract would not be enforced at law--Kean v. Potter 3 P. Will. 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 agreement 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 detre 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 rot 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 farther 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, Vol. II, page 301.'
8. Mr. Davar relies on the above decision as authority for treating the present claim as based on an agreement opposed to public policy, and thus void under Section 23 of the Indian Contract Act. I am of opinion that the present case cannot be distinguished in principle, and I concur in the reasoning of the above passage, and think that I ought to follow it in this matter, it being a clear decision of this point, and hold that the petitioner's allegations do not show a right to sue.
9. The considerations on which the case of the Duke of Hamitton v. Lord Mohun 1 P. Will. 118 120 was decided by Lord Chancellor Cowper appear to me peculiarly applicable in the present matter between guardian and ward, viz., 'that the case of a mother or guardian insisting upon gain for consenting to a marriage, must be a much more frequent mischief, and in all probability oftener happen, than an agreement of this nature with a third person; that it was most natural in this case to treat with the guardian; and to tolerate such an agreement, would be paving a way to guardians to sell infants under their wardship.' The rule and the reason for it are stated in similar terms in Fonblanque's Treatise of Equity, Vol. I, p. 260 (5th ed.). 'So wherever a mother or father, or guardian, insist upon a private gain, or security for it, and obtains it of the intended husband, it shall be set aside; for the power of a parent or guardian ought not to be made use of to such purposes. Yon shall not have ray daughter, unless you do so and so, is to sell children and matches': see also Osborne v. Willams 18 Ves. Jun. 379 and the cases collected under Scott v. Tyler in White and Tudor's Leading Cases in Equity, Vol. II p. 120.
10. I refuse the petitioner leave to sue as a pauper, and Order her to pay the costs.