Tulshiram S/O Maroti Kohad And ... vs Roopchand S/O Laxman Ninawe And ...
2005 Latest Caselaw 1476 Bom

JUDGMENT

R.C. Chavan, J.

1. The Plaintiff, whose Special Civil Suit No. 66 of 1989 for damages was allowed by the learned Civil Judge, Senior Division, Bhandara, and the decree was upset on defendants' Regular Civil Appeal No. 148 of 1993 by the learned District Judge, Bhandara, has preferred this appeal.

2. It was not in dispute that plaintiff No. 2 Rekha, daughter of plaintiff No. 1 Tulshiram, was born on 4th May, 1971. On 25th December, 1988, she was engaged to be married to defendant No. 1 Roopchand, son of defendant No. 2 Laxman. The marriage was scheduled to be held on 7th July, 1989 according to the plaintiffs, and on 20th November, 1989 according to the defendants. It is likewise not in dispute that the marriage was broken and the parties have married elsewhere.

3. It was the plaintiffs' case that the betrothal ceremony was held at Nagpur on 25th December, 1988, where about 100 guests descended from Bhandara and 300 guests of the defendants feasted. Plaintiff No. 1 was required to spend about Rs. 7,300/- on this ceremony. He had reserved a marriage hall by depositing a sum of Rs. 1,300/-. 1,500 marriage invitation cards were also distributed. The defendants with their other relations came to the plaintiffs' house and demanded scooter, gold ring, etc. Plaintiff No. 1 expressed his inability to give such gifts. Defendant No. 1, therefore, refused to marry plaintiff No. 2. The marriage was broken on 4th June, 1989. The plaintiffs, therefore, claimed damages of Rs. 35,000/- for lowering the plaintiffs' esteem in the Society, mental torture and compensation of amounts actually spent.

4. By a written statement, the defendants contended that there was no demand made on the defendants' side as a condition for settlement of marriage. At the engagement ceremony, only 50 to 60 guest were present. The marriage was agreed to be celebrated at Nagpur on 20th November, 1989. Customary gifts, etc., were made to plaintiff No. 2. According to the custom, plaintiff No. 2 ought to have come to the residence of defendants. Yet, plaintiff No. 1 refused to send plaintiff No. 2, though requested on 9th May, 1989 and 12th July, 1989. The defendants alleged that the plaintiffs themselves broke the contract and did not return the gifts. They denied the claim about expenses incurred and stated that Court at Bhandara had no jurisdiction and, therefore, prayed for dismissal of the suit.

5. Upon considering the evidence tendered, the learned Trial Judge held in favour of the plaintiffs and passed a decree for Rs. 27,000/-. The defendants' appeal was allowed by the learned District Judge, who held that the contract was void ab initio because of plaintiff No. 2's minority. He held that the contract was not enforceable even for the purpose of recovery of damages.

6. Second appeal by the plaintiffs was admitted on substantial questions No. (1) to (3) in the memo of appeal.

7. The respondents, though served, had not filed an appearance or engaged a counsel.

8. I have heard Shri C.S. Kaptan, the learned Counsel for the appellants.

9. The learned District Judge had held that the contract of marriage was void ab initio because, according to him, on the date of contract, that is on 25th December, 1988, plaintiff No. 2 was less than 18 years' of age and, therefore, could not have entered into any contract. He had relied on a number of decisions for coming to such a conclusion. There can be no dispute about the propositions emanating from decisions on which the learned District Judge placed reliance, for example, as held in the case of Punjabrao Deorao v. Sheshrao s/o Baburao and Ors. , a contract opposed to public policy is void. Therefore, had there been a contract of giving a minor in marriage, such contract could be said to have been opposed to public policy. It may be seen in the present case that though plaintiff No. 2 had not completed the age of 18 years on 25th December, 1988, the date of her engagement, since she was born on 4th May, 1971 and would have attained majority on 3rd May, 1989, her marriage itself was scheduled to be performed atleast on 7th July, 1989 according to the plaintiffs and on 20th November, 1989 according to the defendants. If that be so, the agreement of the parties to marry plaintiff No. 2 to defendant No. 1 could not be said to be opposed to public policy.

10. In the case of Kr. Rajendra Bahadur Singh v. Kr. Roshan Singh and Anr. , the Court held that betrothal is in the nature of a contract. In the case of Mohori Bibee and another and Dhurmodas Ghose, reported in Indian Appeals (Vol. 30 - 1902 - 1903) 114, it was held that minor cannot enter into a contract.

11. There can be no doubt that plaintiff No. 2 lacked capacity to contract on 25th December, 1988 when the engagement or betrothal took place. But this engagement was not a contract by plaintiff No. 2 to marry defendant No. 1. It was also a contract of plaintiff No. 1 to give his daughter in marriage to defendant No. 1. Therefore, plaintiff No. 1 could undoubtedly maintain a suit for recovery of damages on account of breach of contract with him, whereby defendant No. 1 had agreed to take plaintiff No. 2 in marriage.

12. In the case of Tukaram Ramji Shendre and Ors. v. Madhorao Manaji Bhange and Ors. reported in AIR 1948 (Vol. 35) Nagpur 293, it was held that acknowledgment given by a minor after attaining the majority was useless for the purpose of enforcement of contract. The reliance by the learned District Judge on this decision was extremely unfortunate. The learned Judge ought to have seen the facts of the case in the context of which the observations were made by the Court. In that case, certain sums were found due from the minors. Initially, the guardians of the minors had executed acknowledgments on behalf of minors. There was no problem about these acknowledgments. On 7th March, 1922 when the accounts were again taken, an acknowledgment was signed by one Pandurang, the paternal uncle of the defendants, who did not have the authority to execute the document on behalf of the minors. He had again executed another acknowledgment. Thereafter one of the defendants had attained majority and he signed on behalf of himself and other minor brothers. The question was only in respect of acknowledgments signed by Pandurang, who had no authority to sign on behalf of the minors, since he was not their guardian. In respect of the subsequent ratification by the minors on attaining majority, the Court, observed that since the minors were not in a position to give authority on the date when the acknowledgment was made by the uncle for the reason that minor cannot contract, the subsequent ratification by minors was not binding. It would be cleair from the facts of the said case that it rested on the absence of capacity in the minors to clothe their uncle with power to contract on their behalf.

13. Such is not the present case. In this case, plaintiff No. 1, as guardian of plaintiff No. 2, did have the requisite authority to enter into a contract on her behalf. Further, defendant No. 1 in his own evidence at Exhibit 43 in para 15 states that plaintiff No. 2 had been brought to the defendants' house in May, 1989. Thus, when plaintiff No. 2 went to the defendants' house in May, 1989 she had completed the age of 18 years. Her act amounted to ratification of contract to marry defendant No. 1. In view of this, the observations of the learned District Judge are wholly unwarranted.

14. The learned District Judge had also relied on a decision in the case of Ma Pwa Kywe v. Maung Hmat Gyi, reported in AIR 1939 Rangoon 86, where a Burman Buddhist girl sought to enforce a promise to marry made to her, when she was less than 18 years. The Court held that she could not enforce such a promise. Here, the question is not of specific performance of promise to marry. The question is of getting damages for breach of promise.

15. The learned Counsel for the appellants also drew my attention to a decision of this Court reported in Khimji Kuverji Shah v. Lalji Karamsi Raghavji, reported in AIR 1941 Bombay 129, where the Court categorically ruled that a guardian can enter into a contract of betrothal on behalf of minor children and also can sue for breach. In view of this, there was absolutely no legal difficulty in decreeing the suit.

16. On facts, the learned Trial Judge had found the plaintiffs entitled to a decree of Rs. 27,000/-. There is no reason to take any different view in the matter of quantum of damages assessed.

17. In view of this, the appeal is allowed. The judgment and decree passed by the learned District Judge, Bhandara, is set aside and that passed by the learned Civil Judge, Senior Division, Bhandara, is restored.