Raghava Rao, J.
1. This second appeal arises out of a suit for recovery of damages for breach of promise to marry or in the alternative for seduction of the plaintiff. The plaintiff, a Christian, is the girl seduced, who complains also of the breach of promise, and she sues through her next friend and mother. The trial Court (the District Munsifs Court, Nellore) found that there was the tort of seduction as well as a breach of promise and awarded damages in a sum of Rs. 500 as against the Rs. 1000 claimed in the plaint. On appeal taken by the defendant to the District Judge--of Nellore that decree has been confirmed not however on the ground of seduction but on the ground of a breach of promise to marry. In second appeal the case has been presented alike with reference to breach off promise and with reference to seduction. It may be stated that the plaintiff has since the presentation of the second appeal become a major and has been declared as such. In view of the importance of the questions raised I requested Mr. Y. G. Krishnamurti to act as amicus curiae for the plaintiff-respondent who does not appear here by pleader. I am indebted to him for the assistance rendered by him.
2. The argument in regard to the seduction aspect of the case is that seduction is a tort on the basis of which an action can be brought only by the plaintiff's father or mother on the ground of loss of personal service. As to this what the lower appellate Court has said is this:
'It is true that only the parent or master of the injured woman can maintain an action for damagee for seduction under the English rule. The English rule as to loss of service has no counterpart in the German and French Codes. The English rule is however generally followed in the United States, though abrogated in some States like California. It seems to me that Indian Courts are not bound to follow this historic relic and may adopt a rule which protects the family tie and honour as such and not illogicality through a different cause of action.'
Although it is somewhat difficult to know what the words underlined (here italicised) in the passage cited mean, the learned District Judge apparently was inclined to hold the suit maintainable as for seduction though at the instance of the plaintiff only and not of her father or another on the ground of loss of services. The learned Judge however did not decide the point as he could confirm the decree and judgment of the trial Court not because the plaintiff was entitled to damages for seduction but because she was entitled to damages for breach of promise to marry.
3. The English rule as to the maintainability of a suit for damages for seduction is stated in Halsbury's Laws of England, Vol. XXII at pp. 247 and 248 in paras. 428, 429 and 430 asfollows :
'The right of the master to recover damages where he has been deprived of the services of his servant by the wrongful act of a third person applies to the case where he has been deprived of the services of a female servant by reason of her seduction and consequent confinement. By reason of the circumstances that a daughter may be the servant of her parent, seduction has developed into what may be regarded to all intents and purposes as a separate tort, for which, subject to certain limitations, an action lies.'
A woman who has been seduced cannot herself, as being a consenting party, maintain any action against her seducer. The action must be brought by some one who can be assumed to be her master. This will as a rule, be her father, or, if the father is not alive, her mother, though action may also be brought by her father by adoption; and by an uncle, aunt or brother. No action can, however, be brought by any person who encourages or connives at the seduction.
Since the right of action is based upon the loss of service some evidence, however, slight, must be adduced by the father, or other person in loco parentis, to establish the existence of the relation of master and servant between himself and the woman seduced at the date of the seduction . . ., and if he fails to do so, the action must fail. It is not, however, necessary for him to prove that there was an express contract for service. The existence of the relation is to be presumed from the fact that she resides with her father and performs the duties of a servant, and in this case it is immaterial that the daughter is of age or married. Nor is it necessary for her to reside in the same house as her father, so long as she is in the position of his servant. Where, however, she resides in the same house, it is sufficient to show that she rendered occasional assistance in the work of the household, or even that in the circumstances, as, for example, when she is under age, the father had a right to her service.'
4. In an early case in Allahabad, Ram Lal v. Tula Ram, 4 ALL. 97 : 1881 A. W. N. 143, a suit was brought not as in the present case by the woman who was seduced but by the father of the girl as for compensation for the loss of his daughter's services in consequence of her abduction by the defendant. The case came up before Sir Robert Stuart C. J. and Oldfield J. The learned Chief Justice after referring to Harper v. Luffkin, (1827) 7 B. & C. 387 : (6 L. J. (O. S.) K. B. 23), where Lord Tenterden on a motion for a new trial held that the father was a sufficient plaintiff in the action and a verdict in his favour was upheld, went on to point out, however, that such a ruling proceeded on the fiction that the daughter, though a married woman, might still under the circumstances be considered as her father's servant. The learned Chief Justice of Allahabad then quotes the observations of Lord Tenterden C. J. in the case cited to this effect :
'Unless he (the husband) interferes, it by no means follows that such a relation (that of master and servant) may not exist, especially an against third persons who are wrongdoers.'
On this observation of the learned Chief Justice of England the learned Chief Justice of Allahabad proceeds further to make this comment :
'The last words appear to recognize a principle of parental or family authority which might be usefully applied to the present case; but the English theory on which the 'remedy for such a wrong as that of seduction of a young woman is based is a theory I do not find to have any place in the law of this country, and I am certainly not inclined in any way to encourage its introduction into the legal system of India; and in other European countries, that is, in European countries other than England, the remedy is afforded on the much more intelligible ground of being a wrong to the woman herself, as for example, in the law of Scotland at the present day, in which country the woman needs no help from her father or other relation, but may sue directly for the wrong done to her, that is, of course, where she is of the proper age for maintaining a suit of the kind. But the present case is that of a minor deserted by her husband, and taking refuge in her father's house, where she continued to reside; and it seems to me reasonable and just that the father should under the circumstances be allowed to complain of the seduction of his daughter to a Court of Justice, especially in such a case as the present, seeing that the parental control and authority of a father in India over his children do not appear to be so entirely destroyed as it is in England in the case of a married daughter, but which control and authority are in this country retained by the father to a considerable extent, and recognized whenever circumstances may bring him and his daughter together domestically.'
The other learned Judge (Oldfield J.) who was a party to the Allahabad case took a much stricter view of the unreasonableness of the importation into the law of India of the rule of English law as to an action for seduction. Says the learned Judge :
'The claim, however, in respect of the loss of the daughter's services stands on quite a different footing. It has evidently been brought with reference to the law of England as to an action for seduction, where the basis of the action is founded, not upon the wrongful act of the defendant in the seduction, but upon the loss of service of the daughter, in which service the parent is supposed by a fiction to have a legal right or interest ... It would be very undesirable to introduce a fiction of this kind into the law of this country. The plaintiff cannot be allowed to maintain a suit on a contract for service which is not seriously asserted, nor indeed found to exist in fact, and which is not consonant with Hindu customs. Hindu women are no doubt dependent to a great extent on their male relatives, and they have certain household duties which they are expected to perform, but their position is not one of servitude, from which any contract of service can be implied.'
5. It will be seen from the foregoing passages from the judgments of the learned Judges who decided Ram Lal v. Tula Ram, 4 ALL. 97 : (1881 A. W. N. 143), that except in special cases, according to the learned Chief Justice, an action by the parent of the seduced girl in his own right cannot be brought for damages for seduction while according to the other Judge,Oldfield J. no action by the guardian on the basis of the fiction obtaining in English law can at all be brought in India, the more appropriate form of action being by the seduced woman herself. The difficulty in the way of accepting the view indicated in these judgments that the seduced woman herself has the right of action lies, in my opinion, in this consideration which the Judges in the Allahabad High Court have ignored, namely, that, as well-settled in England and as on general principle may well be accepted in India, a woman who has been seduced cannot herself as being a consenting party maintain an action against her seducer, so that any action can only be brought by some one who can be assumed to be her master. This consideration is adverted to in a judgment of the Nagpur High Court reported in Baboo v. Mt. Subanshi, I. L. R. (1942) Nag. 650 1 A. I. R. 1942 Nag. 99 wherein a critical review of the judgment of the Allahabad High Court is to be found, with which I respectfully agree. As stated at p. 657 of the Report of the Nagpur case :
'. . . we ought to accept the English rule rather than reject it. If we accept it, then we can apply it as a rule of justice, equity and good conscience. But it we reject it, then there is nothing that we can do because we would be inventing a new tort and that is a matter which though within the province of the Legislature is not within the competence of Judges.'
Then again as pointed out at p. 658 of the Report, the person seduced might, though not entitled to found on seduction because seduction implies consent, have, however, a right of action under some other head of law such as assault, false imprisonment or deceit in tort or breach of promise to marry, where such was the case. On the whole I am of opinion that in the present case the action as one brought by the seduced person herself on the ground to seduction cannot be maintained for the reason that I have already indicated, namely, that the person Seduced cannot found on seduction, because seduction implies consent.
6. Turning now to the question of the maintainability of the suit as one for damages for breach of contract to marry, learned counsel for the appellant relies upon Section 11, Contract Act, and argues that, unlike under the English law where a minor's contract is only voidable at his option, in India such a contract is altogether void and can give rise to no cause of action. In the present case the facts are that after the plaintiff attained puberty her parents proposed that the defendant should marry her, and the defendant also agreed to it. Thereafter sexual relations went on between the plaintiff and the defendant with the result that the plaintiff became eventually pregnant and evenbore a son to the defendant. As pointed out in Pollock and Mulla's Commentaries to the Indian Contract and Specific Belief Acts, 7th Edn., p. 64, the case of an agreement for marriage made for a daughter under age by her guardian, such being the custom of the parties' community, has been treated as an exception to the general rule that a minor's agreement under the Indian law is altogether void. It is true that the learned Commentators after referring to the case in Rose Fernandes v. Joseph Consalves, 48 Bom. 673 : A. I. R. 1925 Bom. 97, as illustrating the exception proceed to observe thus :
'This case was approved and followed in a case where the parties were Hindus. In a Bombay case the de facto guardian of a minor had entered into a contract on the minor's behalf for the purpose of insuring property belonging to the minor. It was held that the guardian had authority to effect the insurance and, that being so, that the minor for whose benefit it was made could sue on it in his own name in order to recover on the policy Great American Insurance Co., Ltd. v. Madanlal Sonulal, 59 Bom. 656: : AIR1935Bom353 . The principle on which this decision is based is not altogether easy to understand. If the guardian contracts as the minor's agent, it is the minor's contract and therefore a nullity. If it is the guardian's contract, he should alone be entitled to sue, though he may be under an obligation to hold any benefit under the contract for the minor's benefit. The Court expressly disclaimed any intention of following such cases as Madhab Koeri v. Baikuntha Karmakar, : AIR1919Pat561 but it is not very easy to distinguish them; and all three cases seem to have been really decided on the ground that the contract was for the infant's benefit and that it would be unjust in the circumstances to deprive the latter of that benefit. But there is nothing in the Indian Contract Act corresponding to the rule of English law (saved by the Infants Relief Act, 1874) which makes a contract for the infants benefit enforceable; all contracts in India made by an infant are void.'
It must be noticed however that in the footnote (u) where reference is made to the case in Rose Fernandes v. Joseph Consalves, 48 Bom. 673 : A. I. R. 1925 Bom. 97), the learned Commentators once again point out that contracts to marry made by a guardian on behalf of an infant may be on a special footing. I am not satisfied that read as a whole the passage at p. 64 of the commentaries on which reliance has been placed by learned counsel for the appellant is really fatal to the present suit. On the other hand, it is fairly clear that the learned Commentators do make a distinction between contracts to marry on the one hand and other contracts on the other made by a guardian on behalf of an infant.
7. My attention has been drawn in this connection by Mr. Y. G. Krishnamurti appearing as amicus curiae to the Privy Council decision in Subrahmanyam v. Subba Rao , where it is pointed out that although a minor's contract may be void in Indian law, a contract entered into on behalf of the minor by his guardian for his benefit would be binding upon him and enforceable against him. The question there arose with reference to the applicability of Section 53-A, T. P. Act, in favour of the transferee under a contract for sale of land on behalf of a minor entered into by his guardian. It is not in my opinion correct to say after this Privy Council ruling that there can be no contract entered into on behalf of a minor by his guardian which can be enforced at all against him, notwithstanding that in a given case the contract as entered into may well have been for the benefit of the minor. Anyhow, whatever the position may be in regard to other contracts entered into on behalf of a minor by the guardian there is no doubt that the case of an agreement for marriage made for a daughter under age by her guardian, such being the custom of the parties' community has been treated in India as an exception to the general rule laid down by the Privy Council in Mohori Bibee v. Bharmodas Ghose, 30 Cal. 539 : 30 I. A. 114 P. C., that an infant's contract under Indian law is altogether void. In my opinion, the suit was rightly decreed by the Courts below as on the basis of damages for breach of contract to marry, although the additional footing on which the trial Court had proceeded, namely, that of seduction, has in the view already indicated by me in this judgment, to be regarded as invalid.
8. In the result the second appeal fails and is dismissed but without costs, as the respondent has not appeared by advocate.
9. No leave.