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IN THE HIGH COURT OF BOMBAY
TULSHIRAM s/o MAROTIKOHAD
VERSUS
ROOPCHAND s/o LAXMAN NINAWE
Decided no: DECEMBER 14, 2005
Held, that 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. AIR 1948 Nag 293, Dist. AIR 1941 Bom 129, Rel.
Contract Act, 1872 - Section 73 Breach of contract Promise of marriage Claim for damages Plaintiff promised to give his daughter-in-marriage Betrothal ceremony took place Plaintiff spend money for said ceremony and marriage preparations Entitled to damages for breach of marriage settlement by other party. The counsel for the appellants also drew my attention to a decision of this Court reported in Khimji Kuverji Shah v. Lalji Karsmsi Raghavji, AIR 1941 Bom 129, where the Court categorically ruled that a guardian can enter into a contract of behalf of minor children and also can sue for breach. In view of this, there was absolutely no legal difficulty in decreeing the suit.
On facts, the trial Judge had found the plaintiff 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.
Contract Act, 1872 - Sections 11, 23 and 73 Promise of marriage Breach of Damages for Plaintiff promised to give his daughter in marriage Daughter minor at time of betrothal ceremony v. Attained majority on date of marriage Agreement not be opposed to public policy Contract not void ab initio Breach of marriage settlement by other party Plaintiff entitled to damages for. In the instant 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 at least 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.
There can be no doubt that plaintiff N o. 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.
( 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. 2s 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 vs. Sheshrao s/o Baburao and others, reported in 1960 NLJ 302 = AIR 1962 Bombay 175, 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,
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