Richard Garth, C.J.
1. In this case I have great doubt whether the opinion of the Judge of the Small Cause Court is not correct: and if we were now asked to enforce an agreement to pay pon to a girl's father, in consideration of his giving her in marriage, I should have wished to refer the question to a Full Bench.
2. But the facts, as I understand them, are these:
The plaintiff paid Rs. 100 to the defendant No. 1, in consideration of his giving his daughter to him in marriage; and the defendant No. 2, who is a brother of the defendant No. 1, was a party to the contract.
3. After the money was paid, the defendant No. 1 failed to fulfil his promise, and gave his daughter in marriage to some one else.
4. The plaintiff now seeks to recover back his money, and the defendants attempt to take advantage of the illegality of the contract by way of a defence to the claim.
5. Under these circumstances, I consider that the case referred to Juggeshur Chuckerbutty v. Panch Gowree Chuckerbutty 14 W.R. 154 is directly in point, arid apart from the question whether the contract is illegal, the justice of the claim is entirely with the plaintiff.
6. Upon the authority of that case, therefore, and because it is manifest justice that the defendants should not be allowed to retain the money, I agree with my learned brother that the claim should be decreed.
7. Had the question been whether, as against the plaintiff, we could enforce payment of the Rs. 100 to the defendant No. 1, I should have doubted very much whether we ought to do so.
8. In England, a bargain of this kind, for payment of money to a father, in consideration of his giving his daughter in marriage, is considered to be a marriage brokerage contract, and illegal as against public policy see Keat v. Allen 2 Vernon's Rep. pt. 2 558 and other cases cited in Addison on Contracts, 5th edition, p. 742, 7th ed., 1017.
9. And without going the length of saying at present that I consider such contracts to be illegal in this country, I certainly should be disposed, as at present advised, to hold that they were so far void, as to be incapable of being enforced by the rules of equity and good conscience.
10. In the present case the plaintiffs' suit will be decreed.
11. I think that the suit will lie to recover the money in question. There is nothing immoral in the contract so far as I can see. No doubt the purchase or hire of a minor girl for purposes of prostitution, or concubinage, is an immoral act, but where a legal marriage is in contemplation, the payment of money as a consideration is in accordance with the customs of the country, and therefore, in my opinion, not opposed to public policy. Besides the case cited by the Judge from 14 W.R. 154, I find that a similar view was also expressed by this Court in the case of Ranee Lallun Monee Dossee v. Nobin Mohun Singh 25 W.R. 32.
12. No doubt marriage brokerage contracts are illegal in England, but the reason of this is, that they are deemed to interfere with the free consent of the parties, which is an essential condition in the English marriage contract. But in India the consent of the parties has rarely, if ever, anything to do with the marriage contract, which is generally arranged by the parents or friends of the parties before they themselves are of an age to give a free and intelligent consent. It is opposed to English ideas of public policy that a Kulin Brahman should be paid to marry any number of Kulin girls, but so long as it is the recognized custom of the country, and is not prohibited by law, I think we should be scarcely justified in holding such marriage contracts to be illegal.