1. This is a Second Appeal against the confirming Judgment of Shri K. K. Bose, Additional Subordinate Judge of Berhampur, dated, the 18th December, 1950, arising out of a suit for enforcement of a marriage contract. Plaintiff No. 1 is the husband and plaintiff No. 2 is his wife.
The present defendant-appellant is the maternal uncle of plaintiff No. 2. Originally, the suit was filed against the two defendants, the present appellant and also his father, who was defendant No. 1. He died during the pendency of the suit in the trial stage,
Plaintiff's version is that plaintiff No. 2 being an orphan was given shelter by her maternal uncle, the present appellant and his father, the deceased deft. No. 1. They gave her in marriage but very unfortunately she became a widow shortly after the marriage. Her first husband having died on 22nd February, 1945, according to the plaintiff's version some of the relatives of the defendants induced him to marry Syamala, plaintiff No. 2 and came with alluring proposals.
The proposals matured into promises and they are as follows. That the lands yielding 5 cart-loads of paddy be conveyed in the name of Syamala, plaintiff No. 2 for the benefit of both the plaintiffs, the gold and hewels worth Rs. 700 be given to Syamala Debi, to pay insurance premium on an Insurance Policy on the life of plaintiff No. 1 for Rs. 1,000, and Rs. 300 to be paid immediately to the plaintiff No. 1 for marriage expenses.
We are not concerned with the third and fourth items. Plaintiffs further state that the marriage took place, but, even before the marriage the original first defendant, the father of the present appellant owning considerable landed property executed a will on 16th of March, 1945, bequeathing 1/7th of the share of his land in favour of plff. No. 1.
This was by way of creating confidence in plff. No. 1. But, thereafter, the father of the present appellant executed another Will in supersession of the first one where he has made provision of a cash of Rs. 400, only.
Both the plaintiffs were residing in the house of the defendant-appellant, but, nearly a year and a half before the suit, they were driven out. The plaintiffs, therefore, have brought the suit for enforcement of the marriage contract which remains to be fulfilled with the prayers that the defendants may be directed to convey lands yielding 5 cartloads of paddy in favour of plff. No. 2 for the benefit of both the plaintiffs or in the alternative directing the defendants to pay a sum of Rs. 2,500 as equivalent value.
Plaintiffs further pray for a decree against the defendants to deliver to plff. No. 2 gold and jewel worth Rs. 700 or to pay the value. The defence is the marriage was celebrated in the house of defendants, but, nevertheless, it was performed by the brother of the 2nd plff.
There is a complete denial about the aforesaid two promises. The defence asserts definitely that there was only a contract for payment of Rs. 300 towards marriage expenses which was paid off by the brother of the 2nd plaintiff.
2. As is usual, such marriage contracts are very seldom reduced to writing. The plaintiffs had to rely upon the oral testimony of witnesses examined on their behalf. Both the Courts after thoroughly discussing the evidence adduced by both parties have given us the benefit of a finding of fact that there was such a contract between the parties.
On a perusal of the Judgments of both the Courts below and after the entire evidence was placed before us by Mr. H. Mohapatra, we are definitely of the view that the finding of fact is conclusive and cannot be assailed in second appeal.
3. A further point has been advanced by Mr. Mohapatra, the learned counsel appearing on behalf of the appellants that the suit in any event must be thrown out as barred by limitation. The Courts below have negatived the contention on the finding that the case is covered by the provisions of Article 115 of the Limitation Act and the cause of action of the suit arose when the plaintiffs were compelled to leave the house of the defendants which is well within three years of the suit.
Plaintiff's version also was accepted that the cause of action arose only on the original defendant No. 1 having executed a second Will on 15th of July, 1948. It is to be noted that the present suit is brought on 14th May, 1949. Article 115 runs thus:
'115. For compensation for the breach of any contract, express or 'implied, not in writingregistered and not herein speciallyprovi-ded for.
When the contractis broken, or (where there are successivebrea-ches) when the breach In respect ofwhich the suit is instituted occurs or (where the breach iscontinuing) when it ceases.
This article, as it appears plain from the language itself is a residuary article for compensation of any breach of contract. We have got to examine if the present case can be brought within the language of any other Article. Mr. Mohapatra has drawn our attention to Article 65 of the Limitation Act running as follows:
'65. For compensation for breach , of a promise to do anything at a speci-fied time, or uponthe happening of a specified contingency.
When the time specified. arrives or the con-tingency happens.
This is not a case where a time is specified. But nevertheless, this appears to be a case where the specified contingency has happened. The celebration of marriage between the plaintiffs Nos. 1 and 2 is the specified contingency. It is clear from an analysis of the very case of the plaintiff No. 1 himself which is as follows. That there was inducement on the plaintiff No. 1 to marry plaintiff No. 2, who was a widow by the time.
The promises were held out to him. He further, therefore avers that he married only for the promises; but for the promises he would not have shouldered the social odium of marrying a widow. The suit is brought as the promises have not been fulfilled. This analysis of the case of the plaintiff shows that in fact this was a promise on the part of the defendants to convey the lands with an yield of 5 cart-loads of paddy and to deliver gold and jewels worth Rs. 700 on the marriage of plaintiff No. 1 with plaintiff No. 2.
Marriage is undoubtedly a contingency as the plaintiff No. 1 could according to his will either marry or not marry. It is manifestly specified within the body of the contract itself. The time therefore, according to him runs from the celebration of the marriage which is dated 25th April, 1945. A question may be put to the plaintiffs on the performance of the marriage, if the promises remained unfulfilled, had they not the right to sue for the enforcement of the promises provided they were otherwise legally enforceable.
Undoubtedly, time had therefore to run against them from the date of the marriage, the promises remaining unfulfilled. Indeed, no authority directly on the point was placed before us, but we felt no doubt in our mind that the suit manifestly is barred by limitation as the cause of action arose from the date of the marriage. The first Will which was before the marriage making provision for 1/7th share of the lands in favour of plaintiff No. 2 is certainly not in accordance with the alleged contract between the parties, and it was certainly open to the testator to change it at any time.
The Will itself is not enforceable during the life time of the testator and as a matter of fact, he changed the terms and the provisions made thereunder. Driving the plaintiffs out of the defendant's house also cannot serve as the date of the cause of action as the present promises which are sought for being enforced in the present suit have nothing to do with the residence of the two plaintiffs in. the house of the defendants.
Even, if we accept the contention of the respondents that the case is covered by Article 115, there is no escape from the mischief of limitation as time runs from the date when the contract was broken, There was no specified date when, the contract was to be performed. On the contrary, the contract was to be fulfilled on the marriage of the two plaintiffs and the cause of. action as we find, arose on the date of the marriage; even then the suit is barred by limitation.
4. Another interesting point was also argued at the Bar at some length and quite a number of decisions were placed before us, the point being that such a contract for dowry is not enforceable as being hit by the provisions of Section 23' of the Contract Act and as being against public policy and repugnant to all morals.
Itjnay be mentioned at the outset, we may take it as settled law, marriage brokerage contract where a third person intervenes and wants to make money out of the marital relationship between the two partners is against public policy and not enforceable by a Court of law.
But there are various other phases of marriage contracts. We will first take notice of some of the decisions cited before us. The decision which should be referred first is a Full Bench decision of the Madras High Court in the case Venkata Kristnayya v. Lakshmi Narayana, ILR 32 Mad 185 (A).
The question which was referred to the Full Bench is 'Is a contract to make payment to a father in consideration of his giving his daughter in marriage to be regarded as immoral or opposed to public policy within the meaning of Section 23 of the Indian Contract Act?' The opinion of the Full Bench expressed in the leading Judgment of the Chief Justice Sir Arnold White is in the affirmative.
But the learned Chief Justice has made it clear in the body of the Judgment that on a question whether a contract to make a payment to a father in consideration of his giving his daughter in marriage to be regarded as immoral or opposed to public policy within the meaning of Section 23 of the Indian Contract Act, it is held that such a contract was immoral and opposed to public policy, although a marriage when performed in the Asura form is valid, an agreement to pay money to the father in consideration of such marriage is not valid and the money cannot be recovered by suit.
If the money had been paid and the marriagesolemnised, the money cannot be recovered. Thiswas a case of marriage by Asura form and the bride'sfather was paid money in consideration of the marriage. The marriage indeed was celebrated andthereafter, there was a suit for recovery of the money paid by the bridegroom on the basis of an awardin his favour. It was held as null and void as contrary to public policy according to the opinion ofthe Full Bench.
The second decision which we will refer to takes an extended view of the matter and the learned Judges have expressed themselves in stronger terms. The case is reported in Dholidas v. Fulchand Chhagan, ILR 22 Bom 658 (B).
The plaintiff in this suit sued to recover damages from the defendants, the widow and son of one Chhagan Purshotam for breach of a contract where Chhagan agreed to give his daughter in marriage to the plaintiff's son. The agreement provided that Chhagan should pay the plaintiff Rs. 337 as peheramni and Rs. 51 as at the time of the marriage.
The plaintiff when the marriage contract was broken, married his son to another girl but. he received no peheramni from the father of the bride, On the contrary he had to give a sum of Rs. 402.
Farran, C. J., observed: 'The question, therefore, directly arises whether a contract which entitles a father to be paid peheramni on the marriage of his son is against public policy. When a father or other guardian of a boy or girl has to betroth his ward, his primary and only consideration ought to be the happiness and welfare of the child. The stipulating for a monetary payment for himself is, or may be, I think an incentive to the parent or other guardian to have regard to other considerations than the child's happiness in marrying him or her into another family.
The danger is manifestly less obvious in the case of a father seeking a wife for his son than in that of a father seeking a husband for his daughter, but in principle, it would be difficult to distinguish between the two. Such an agreement would clearly be invalid under English Law.'
Tyabji, J., in his .separate Judgment uses very strong term in condemning such contracts. 'It would be held to be against public policy and public interest as having a tendency to cause matrimony to be contracted as mere matter of bargain and sale, a 'Kidnapping into conjugal servitude', as one of the Judges expressed if
They have made it absolutely clear at p. 666 of the report that there is no distinction between the father of a girl and the father of a boy, so far as this point is concerned. In the case of Ram Sumran Prasad v. Govinda Das, AIR 1928 Pat 582 (C), Sir Jwala Prasad, J., in his leading Judgment while sitting with Bucknill, J., decided that the settlement of a nuptial gift on the bride' or bridegroom at the time of the marriage is not prohibited.
In practice the receiving of a gift by the 'bride'sparents or relations at any time in connexion withthe marriage is not permissible, but gifts by thebride's parents to the bridegroom and his relationsis not considered to be bad and is in vogue. But,where the gift is actually made whether to the bride,the bridegroom or the father of the bridegroom bythe bride's parents it cannot be recovered back whenonce the marriage is solemnised though it may notbe enforced in a suit.
In other words, a suit may not lie to recover the promised dowry but when once the dowry is paid as a consideration for the marriage and the marriage is performed, the dowry cannot be recovered back. The implication behind the decision is that once the dowry has been paid in consideration of the marriage and the marriage has been solemnised, it cannot be recovered back.
As it appears to me that the Courts should wash their hands completely clean of such transactions. But, nevertheless, the observation is made that such a contract for dowry is not enforceable in law. We will now take up a decision of Harington, J., of the Calcutta High Court in the case of Baldeo Das v. Mohamaya Persad, 15 Cal WN 447 (D), wherein it was decided: 'A contract whereby a guardian whether natural or appointed agrees to dispose of his ward in marriage for his own personal pecuniary gain is not enforceable in a Court of Law.'
As his Lordship observed: 'If it be on principle unlawful for a parent or guardian to dispose of his ward in marriage for his personal advantage it appears to me to be irrelevant to show that in fact the ward was not injured by the disposal.' Here, a Hindu mother sought to recover a sum of money which the defendant had agreed to pay to her in consideration of her consenting to give her daughter in marriage to his son. The marriage was duly celebrated but the promised amount was not paid. So the action.
The case was decided on the principle that the rule rests on the broad and general principle that where any one is in a fiduciary position with respect to a person and is bound to exercise skill, care or judgment for the benefit of that person, he must not take a reward from some other person for the exercise of his power in some particular way, whether the course taken is in fact beneficial or the reverse to the person whose interest he is bound to protect.
That is to say, the guardian cannot make a bargain out of this marriage union between the couple and the bargain, if any, can never be encouraged by the Court of law in enforcing such a transaction.
One of the oldest cases on the point is that of Mr. Justice Mookherjee in the case Bakshi Das v. Nadu Das, 1 Cal LJ 261 (E),
Justice Mookherjee made an observation to the effect during the course of the Judgment that although a Court may not enforce an agreement to pay money to the parents or guardian of an intended bride or bridegroom, on the ground that the agreement is opposed to public policy, yet a suit is maintainable for the recovery of any sum actually paid pursuant to the agreement, if the contract is broken and the marriage does not take place. His Lordship laid down several rules on a review of quite a number of decisions. The rules appear at pp. 266 and 267 of the report.
It is Rule (5) alone which is relevant for our purposes. Rule (5) contains the principle as I have indicated above. Here, the money was paid in accordance With the direction, but nevertheless, the marriage was not solemnised and the suit was brought for recovery of the money paid on account of the marriage contract being broken.
Indeed, we are not at all concerned in the present case with the position that may arise on account of the marriage contract having, been broken, that is, whether the Court will insist the parties to bring themselves into a position prior to any such contract if really an illegal or immoral contract has not been executed.
But the observations 'Although a Court may not enforce an agreement to pay money to. the parents or guardian of an intended bride or bridegroom on the ground that the agreement is opposed to public policy,' is material for the purpose of out case.
5. It would be pertinent to refer to a decision of a great Judge, Sir Dawson-Miller, C. J., in the case of Raghubar Das v. Natabar Singh, 4 Pat LJ 542: (AIR 1919 Pat 316) (F). The plaintiff in the suit brought an action to recover a sum of Rs. 5,000 paid to the defendant in consideration of an agreement by the defendant, who was the spiritual Guru of the Rani Saheb of Kauria to bring about the adoption by that lady of one of the plaintiff's sons. Rs. 5,000 were paid to the Guru to induce the widow to adopt one of the plaintiff's sons and the understanding was that if the adoption did not take place the money would be refunded.
The adoption did not as a matter of fact, take place. So the plaintiff claimed Rs. 5,000 which he had paid. Their Lordships condemned such a contract as amounting to moral turpitude. It was a sort of bribery to the Guru for the purpose of exercising his spiritual influence over the widow to take in adoption one of the sons. of the plaintiff. Indeed, it was nothing else than highly reprehensible.
Dawson-Miller, C. J., observed: 'Speaking formyself it seems to me that this is just one of thatclass of cases which the Court will refuse to haveanything to do with at all because it is in my viewa grossly immoral act to endeavour to bribe a priestto use his spiritual influence with his chela in the interests of the person bribing him and if the plaintiff comes and asks us to assist him in any way incarrying out the terms of such a contract or to recover back money paid under it, I think the Courtought to refuse.'
Roe, J., in a separate short note however, added that no distinction can be made between an agreement to bring about a marriage and an agreement to bring about an adoption. Indeed, this strong view of the great Judge has been softened to a great extent by subsequent decision of the same High Court where their Lordships have found that if the marriage did not take place the suit may lie to recover back the amount paid, in the case of Dharnidhar V. Kanhji Sahay, AIR 1949 Pat 250 (G).
The plaintiff-appellant concluded negotiations for the marriage of his daughter with the son of the respondent on the promise that the plaintiff would send Rs. 2,449 to the defendant for the purchase of ornaments for the bride and the date of marriage was fixed. The plaintiff in fact sent Rs. 2,250 to the defendant, but, nevertheless, subsequently the marriage agreement was cancelled and the plaintiff sued for recovery of the sum paid by him.
Manohar Lall, J., observed in para. 18 of the report: 'Let me assume however, that the contract was illegal per se and, therefore, ab initio void. Even On this supposition the defendant cannot retain the amount which he has received from the plaintiff because the plaintiff in suing to recover possession of his Rs. 2,250 is not carrying out the illegal transaction but is seeking to put himself and the defendant as far as possible in the same position as they were before that transaction was determined upon, and it is the defendant who is relying upon the illegal contract and is seeking to make title to the money through and by means of it.'
Ramaswami, J., in a separate Judgment however condemned such a transaction as immoral and opposed to public policy and with respect quoted some of the strong expressions of Tyabji, J., from the case reported in ILR 22 Bom 658 (B). But, nevertheless, in conclusion he agreed that though money could not have been recovered had the contract been carried out, it could be recovered since the immoral purpose must not be carried out and the parties should be placed in the same position as they occupied before the contract.
It is on this principle that such suits have been held to be maintainable. The same view was also taken by a decision of our High Court in the case of Gopi Tihadi v. Gokhej Panda, ILR 1953 Cut 558: (AIR 1954 Orissa 17) (H). The case before then Lordships was one of the Asura form. Defendant No. 1 in the case was the. father of the daughter who received a sum of Rs. 650 from the plaintiff in consideration of giving his daughter in marriage to the brother of the plaintiff.
The money was paid but the marriage contract fell through and the marriage was not solemnised. The suit was brought for recovery of the amount paid. Panigrahi, C. J., on a review of quite a number of decisions on the subject, however, reiterated the same principle as laid down in the aforesaid Patna case, AIR 1949 Pat 250 (G).
Panigrahi, C. J., observes 'The principle underlying these decisions, as far as I can understand, is that the plaintiff in suing to recover money advanced by him is not carrying out an illegal contract but is seeking to put every one, as far as possible, in the same position as they were in, before that transaction was determined upon.'
As I have indicated above, this set of cases wherethe marriage was not solemnised and the money paidwas sought to be recovered, has no direct bearingso far as the present case is concerned and We express absolutely no opinion on that branch of thelaw.
But subject to this exception in almost all other batches of cases on this topic the contract for receiving pecuniary gain either by the father of the groom or the bride in consideration of giving his son or daughter in marriage has been condemned as opposed to public policy and repugnant to moral.
In none of the aforesaid cases, the groom himself was a contracting party as in the present case. But I do not think, this will make a great distinction in the matter of the principle involved, particularly so far as the present case is concerned.
We should like to make it clear at the outset that if the gifts or presents by the parents of the groom or the bride are made voluntarily on the occasion of the marriage it cannot be attacked as anything immoral or opposed to public policy. A man, in law, is absolutely free to dispose of any part of his property according to his own sweet pleasure and if he chooses to make a settlement of land or make costly presents of jewels voluntarily, there is nothing there upon to criticise. But, if pecuniary gain is made the consideration of the marriage, it is bound to he condemned as reprehensible to all sense of decent morals.
In the present case, it appears from the case of the plaintiff himself that plaintiff No. 1, was induced to marry plaintiff No. 2 on the aforesaid promise of defendants and finally plaintiff No. 1 married plaintiff No. 2 in pursuance of the above understanding. It is further stated and it is more important that plaintiff No. 1 would not have married plaintiff. No. 2 on account of great social odium but for the promise, of the defendants.
It is clear from this part of the plaintiff's case that mercenary gain was the sole consideration for the marriage between the two. At the time when this marriage took place according to the Hindu concept it was both a sacrament and a necessity from spiritual and social points of view.
The plaintiff was sui generis. He was to choose his partner in life, the partnership being indissoluble according to the concept preaviling at the time and if pecuniary gain is the sole consideration for entering into such sacred and indissoluble union, the contract is condemnable as repugnant to all decent sense of morals.
In the present case, therefore, I have no hesitation to find that plaintiff made sacred and solemn union of marriage into a pure bargain of sale and purchase. The Courts, therefore, cannot enforce such a contract and encourage such bargains which undoubtedly vitiated the sacredness and solemnity of the marriage union and further polluted the choice of the plaintiff which ought to have been made entirely on different considerations.
6. We cannot close the Judgment without noticing a decision of a Single Judge in the case of Narayanan Nambudiri v. Petticharavoor, AIR 1945 Mad 165 (I). That was a case where the contract was with the bridegroom who was to be paid Rs. 2,500 and the contract was being enforced by the legal representatives of the deceased bridegroom. Justice Somayya, however, found: 'A promise to pay a particular sum of money or to settle some property on a bride or bridegroom in consideration of her or his marrying the son or daughter of a promisor is not invalid and is not opposed to public policy.'
Indeed, his Lordship acknowledges that there is no direct authority in support of this view. With great respect I should observe that the learned Judge has failed to make a distinction between two very important features arising in cases of this nature. The first is, where a gift or settlement of some property is made most voluntarily and willingly on the occasion of a marriage and the second, is, where a promise to settle or pay a particular sum serves as the sole consideration for the sacred union of the bridegroom and the bride.
In the first, there is nothing repugnant to our morals, but, the second one appears to be highly immoral as it amounts to turn matrimony as a mere matter of bargain and sale, a 'kidnapping into conjugal servitude' in the language of one of the eminent Judges. We are therefore, unable to decide the present case on the basis of this Madras decision. The contract which is -sought to be enforced by the present plaintiffs is, therefore, hit by Section 23 of the Indian Contract Act as being immoral and as such it is not enforceable in Court.
7. In conclusion, the appeal succeeds, the Judgments and decrees of the Courts below are set aside, and plaintiff's suit is dismissed with costs throughout.
8. I agree.