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Aukella Vydianatham Vs. Kuncham Gangarazu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1893)3MLJ132
AppellantAukella Vydianatham
RespondentKuncham Gangarazu
Cases ReferredPitamber Ratansi v. Jagjivan Hansraj
Excerpt:
.....than exclude the operation of the rule designed to prevent the possibility of deceit on parents as well as on either party to the marriage. in the absence of an established usage to the contrary, i see no good reason why an additional evil should be engrafted on this country by ignoring the rule of public policy and according a legal status to marriage brokers by supposed analogy in asura marriage. best, j. that there is good reason for adhering to the english rule declining to give to marriage brokers a legal status such as would enable them to enforce their contracts by law......is regarded with disapproval. it is no doubt true that the asura form of marriage which involves a money payment is valid according to hindu law and it was also laid down in visvanathan v. saminathan, i.l.r 18 m 83 that a bond given to secure such payment was valid. but the payment in this case was to be made to the father of the girl for giving her in marriage. though this form of marriage is disapproved by text-writers, yet it is upheld as it is in accordance with established usage. it is also to be observed that the money received by the father is often applied in part to making jewels for the girl given in marriage and in part to meeting the other expenses of the marriage and that this mode of applying the payment is also an argument in favor of the usage. but the case is otherwise.....
Judgment:

Muthusami Aiyar, J.

1. The question for determination in this case is whether the contract sued on is a marriage brokerage contract and if so whether it is valid. There is no reason to think that the contract in question is not a contract as found by the court below to assist the defendant for reward in procuring a wife. The point which the question then comes to is whether the rule of public policy which invalidates marriage brokerage contracts in England is applicable to the case before us. The reason of that rule as stated in Hall v Thynne Show, P. C. 76, which went to the House of Lords is that it is conducive to public good that marriages should be procured and promoted by the mediation of relatives and friends and not by hirelings. On principle this rule appears to be of general application and not of a special or conventional character. Is there anything then in the usage of this country to preclude its operation? As far as I am aware there is nothing to the contrary. On the other hand the interference of hirelings in bringing about marriages is regarded with disapproval. It is no doubt true that the Asura form of marriage which involves a money payment is valid according to Hindu law and it was also laid down in Visvanathan v. Saminathan, I.L.R 18 M 83 that a bond given to secure such payment was valid. But the payment in this case was to be made to the father of the girl for giving her in marriage. Though this form of marriage is disapproved by text-writers, yet it is upheld as it is in accordance with established usage. It is also to be observed that the money received by the father is often applied in part to making jewels for the girl given in marriage and in part to meeting the other expenses of the marriage and that this mode of applying the payment is also an argument in favor of the usage. But the case is otherwise where hirelings are employed and their employment tends as much to deceit on parents in India as in England. It is true that there are child marriages in India-- but the prevalence of such marriage appears to me to require rather than exclude the operation of the rule designed to prevent the possibility of deceit on parents as well as on either party to the marriage. In the absence of an established usage to the contrary, I see no good reason why an additional evil should be engrafted on this country by ignoring the rule of public policy and according a legal status to marriage brokers by supposed analogy in Asura marriage. I would therefore rest my decision on two grounds, viz., that the justice of the rule of public policy is open to no question, and that no established usage precludes its application except in the case of a. money payment agreed to be made to the father of the girl in the Asura form. I would dismiss this petition.

Best, J.

2. The question for decision is whether the Subordinate Judge is right in dismissing the suit as unsustainable on the ground that the consideration for the agreement being money promised to be paid for the negotiation of a marriage, the contract is against public policy and therefore void. In I.L.R. 13 M 88 it was held by Wilkinnon and Parker JJ., that a suit would lie to recover money under a bond executed to the father of a girl in consideration of his giving his daughter in marriage to the nephew of the defendant, the executant of the bond. As remarked by Wilkinson J., in that case the principles on which the English Courts act in disallowing such contracts are not altogether applicable to this country in which the custom of infant marriages prevails and where it may be that the consideration in such cases is often received by the father for the use and benefit of the child. The case reported in I.L.R 10 C 1054 Ram Chand Sen v. Audaito Sen, was also one in which the agreement was to pay money to the father of the child to be given in marriage. The present case is distinguishable from the above in that the agreement here is with a stranger in consideration of negotiating the marriage. A case more to the point is Pitamber Ratansi v. Jagjivan Hansraj reported in I.L.R 13 B 131 in which it was held by Scott J. that there is good reason for adhering to the English rule declining to give to marriage brokers a legal status such as would enable them to enforce their contracts by law. Concurring in this opinion I agree in dismissing the petition.


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