Arnold White, Kt., C.J.
1. The question which has been referred to us is 'Is 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?'
2. I am of opinion that our answer to this question should be in the affirmative.
3. I should have had little hesitation in coming to this conclusion had it not been for the fact that in Vaithyanathan v. Ganga razu I.L.R. (1889) M. 83 in which the judgment was delivered by Sir Muthuswamy Aiyar, the learned Judges would appear to have approved of the decision in an earlier case, Visvanathan v. Saminathan I.L.R. (1893) M. 9, in which a contract to make a payment to a father in consideration of his giving his daughter in marriage, the marriage having taken place in the Asura form, was held to be enforceable. There can be no doubt that the contract which was held to be contrary to public policy in Vaithyanathan v. Gangarazu I.L.R. (1889) M. 83 was a marriage brocage contract, in the ordinary acceptation of the term, whilst in Visvanathan v. Saminathan (1893) I.L.R. 17 M. 9 the contract was with the father. Further, I do not think it can be said that the Judges who decided Visvanathan v. Saminathan (1893) I.L.R. 17 M. 9 intended to limit this decision to cases where the marriage had taken place in the Asura form. There are general observations in the judgments in Visvanathan v. Saminathan (1893) I.L.R. 17 M. 9 which go to show that the learned Judges were of opinion that the English rule of law was not applicable, apart from any question of the form of the marriage, and Sir Muthuswami Aiyar in Vaithyanathan v. Gangarazu (1889) I.L.R. 13 M. 83 did not dissent from those observations. Sir Muthuswami Aiyar based his decision on two grounds, viz, 'that the justice or the 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.' The learned Judge appears to have intended to limit his exception to cases where the marriage took place in a form which necessarily involved a money payment to the father. Although it may be, that as regards the particular case in which the present order of reference has been made, the question does not arise, we cannot answer the question, in the general form in which it has been referred to us, without deciding whether the rule does or does not apply when the marriage is in the Asura form. It is to be observed that the learned Judges who decided Vaithyanathan v. Gangarazu (1893) I.L.R. 17 M. 9 were not considering the general question which we have to decide but the special question whether the earlier decision, where the marriage had been in the Asura form, was good law. The question arose for consideration in the Bombay High Court in Dholidas v. Fulchand I.L.R. (1897) B. 658 In his judgment in that case Tyabji J. after referring to the authorities, said: 'The above authorities seem to me to establish conclusively that a promise to pay money to a Hindu father, in consideration of his giving his son or daughter in marriage, cannot be enforced in a Court of law. It is no doubt, true, however, that the Asura form of marriage which is legal among the lower castes, is nothing more than the purchase of a wife from her father by the husband. It has, therefore, been contended that so long as such a form of marriage is permitted, payment of money to the father of a boy or girl cannot be illegal and must be enforced. I agree, however, with Scott J. in thinking that this argument is not well founded, for though the Asura form of marriage when actually performed may be recognised as valid, it does not follow that an agreement for such a marriage would be legally enforced. Mann himself denounces it strongly, and lays it down in Section 24 that 'the ceremonies of Asura must never be performed.' I think, therefore, that though the money, if actually paid to the father in consideration of the marriage, cannot be recovered back when once the marriage is solemnized, it by no means follows that a suit to recover the money, where it has not been paid, would lie.' I think, this is the better view and I am prepared to adopt it.
4. In my opinion a question of this sort should be decided on general principles and not with reference to the special terms of a particular contract. I entirely agree with the observation in the order of reference that an enquiry in each case as to whether, having regard to the terms of the particular contract, the contract is or is not contrary to public policy, would be very objectionable.
5. I would answer the question in the affirmative.
Miller and Munro, JJ.
6. We agree and have nothing to add.