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In Jotiram Dalsukhram
v. Bai Diwali1 ,
Bai Manek died intestate and her estate is now in the possession of her husband’s
nephews, the defendants, who are also his reversionary. The plaintiffs are the
nephews of Bai Manek being her brother’s sons, and they claim preferential
right to succeed on the ground that Bai Manek was married to her husband in the
Asura form, and that the estate devised to her by her husband being technical
stridhan according to the Vyavahara Mayukha, her heirs would be the plaintiffs,
the sapindas of her father in preference to those of her husband. The
defendants have contended to the contrary. The defence was really of a twofold
character: first, that the marriage was according to the customary natra form
without payment of any bride price and that the only payment made on the
occasion by the husband was for the wife’s palla; and, secondly, that, even if
the payment was for bride price in reality, the nearest heir alive and entitled
to succeed, being the sister of Bai Manek according to the Mayukha, the
plaintiffs have no right to claim the estate.

It is a circumstance of
significance that all the plaintiffs’ witnesses are the relatives of their
mother, and there is not a single witness coming from the side of their father.
The principal witness was the mother’s brother Hargowan Gangaram (exhibit 70)
who has apparently taken the leading part in this litigation. The remaining
witnesses are his relatives and connections.

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Dealing with Hargowan’s
evidence (exhibit 70) it is curious that he possesses no information of Manek’s
family and her first marriage. In his evidence he has laid emphasis on two controversial
points in the case : first, that no contract of natra has ever been entered
into in writing in his caste ; and, secondly, that when bride price is received
according to the Morvi State rules two percentage of the amount is charged by
the State from the party receiving it. The importance of the denial of the
written contract lies in the fact that, according to the defendants, Hargowan
had himself written out the contract containing the terms of the natra and the
amount which the bridegroom had agreed to pay before and at the ceremony. The
defendants have relied upon that document as displacing the story of the
plaintiffs, for, according to them, the nature and character of the payment is
expressly set out therein. That document, which is exhibit 116 in the case, was
put to Hargowan, and he has emphatically denied having ever written it. The
other witnesses who came to support him both on the question as to the custom
relating to contracts of widow remarriage and also in regard to payment of bride
price were his own mother-in-law (exhibit 74), the latter’s brother (exhibit
72), his wife’s uncle (exhibit 71) and the plaintiffs’ maternal aunt (exhibit
75). There is no reason therefore to assume that the rule in regard to
remarriage enforces the payment of duty only on bride price and not on palla.

The underlying
implication of Mr. Thakor’s argument is that natra or widow’s marriage is in a
special category of its own, and does not become unapproved or Asura even on
payment of bride price. There is no authority cited in support of that view
either from the texts or the recognized commentaries. It seems to the court
that the sacramental idea attending marriage among Hindus would apply with
equal force to a widow’s marriage. There is nothing in the enactment of 1856
(Hindu Widows Remarriages Act) to deprive the parties to the marriage from
adopting any of the forms prescribed by the Hindu shastras if they chose. In
the opinion of the court the taint, if I may say so, implicit in the unapproved
form does not attach so much to the ceremony as to the contract itself.
Therefore there is no reason for holding that it cannot attach to natra if the
marriage contract discloses it.

In Gopi Tihadi v.
Gokhei Panda2 ,
The plaintiff was on the lookout for a bride for his brother, Manu Tihadi, and
defendant 2 who is distantly related to him, brought forward a proposal for
getting the daughter of defendant 1 married to the plaintiff’s brother. On
6-3-44 both the defendants approached the plaintiff who accepted the proposal and
it was settled that the plaintiff should pay Rs. 650/-to defendant 1 for the
marriage expenses in consideration of defendant 1’s giving his daughter in
marriage to plaintiff’s brother. The Mahaprasad Nirbandha or betrothal took
place at the village temple on 11-5-44 and the plaintiff paid the stipulated
sum of Rs. 650/- to defendant 1.

“The custom of paying a
bride price had its origin in its, being regarded as compensation to the
bride’s father for transfer of his patriarchal authority to the husband, and
this custom is not peculiar to the Hindus alone.” Later, the Romans adopted
this custom and matured and improved it. Originally, there were only two forms
of marriage, Brahma and Sulka, mentioned in the Griha Sutra. One was priestly,
the other contractual. Originally Sulka implied and latterly meant a tax or a
fee, which was a fixed amount. Kaikeyi’s Sulka, at the time of her marriage
with Dasaratha was that her son was to succeed to the throne. It was originally
nominal and symbolical. The sale of a girl is certainly prohibited but the
receipt of a sulka had been long established even before Manu’s Code. It is
referred as the “price of a bride” and forms no part of the Vedic
ritual. Where the parent took a large amount from the bridegroom, the marriage was
called ‘Asura or Manusha’ meaning popular or human. This is of course condemned
by Manu as it amounts to sale of a bride but a marriage performed in this form
is not declared illegal. It is followed by Vedic rites and Manu allows
inheritance to the son born out of an Asura marriage. Yagnayavalkya also does
not make the Asura marriage illegal3. The old law, therefore,
has survived to the present day.

Manu’s injunction
against the receipt of bride-price is as follows: “No father who knows the law,
must take even the smallest gratuity for his daughter, for a man who, through
force, takes a gratuity is a seller of his offspring” — Ch. III — 51.”

It is clear, therefore,
that while marriage in the Asura form is perfectly valid, the sale of the bride
as such is prohibited. Moreover, there are Vedic passages in favour of the
custom of purchasing a woman and the Smritis, therefore, find it all the more
difficult in opposing this practice. The Manava Griha Sutra and the Kathakas
contain the ceremonials for the purchase of women, known as “Soulka
Dharma”. Here it appears to be the usual form of marriage in which the
father of the bride receives the price of the bride in gold. Like the Smritis,
the Maha Bharat condemns the purchase of women in principle, but allows it in
practice — See Jolly’s Hindu Law and Custom — p. 114.

In modern times the
practice is so widely prevalent that the opposition of the Brahmins appears to
have been only partially successful. It prevails in Bengal, though chiefly
among the low castes. In Bombay presidency, however, it is very much in vogue
even among the higher castes. In Gujarat, the sale of girls is said to take
place even now secretly, even among people who publicly denounce it, and in the
City of Bombay often earnest money is paid by depositing valuable objects.
(West and Buhler). Among the Sama Vedis a respectable and strictly religious
sect of Brahmins in Thana, the father of the bride gets from Rs. 200/- to Rs.
1000/- as the price of bride — Bombay Gazetteer. Also in the Madras Presidency
the payment of price for brides is customary in various castes (Madras Census
Reports — 13 Madras 83.) The same is the case in  Punjab.

The evidence on the
side of the plaintiff consistently is that it was paid to defendant to meet the
marriage expenses. I am unable to see anything in this transaction which is
opposed to public morals. The plaintiff was in the position of the oppressed
party and the defendant in that of the oppressor. There is an inequality of
situation between the parties and the delictum is not par. It is only in cases
where the two parties are equally at fault that the Court refuses to lend its
aid to one who found his cause of action upon an immoral or illegal contract
‘ex dolo malo non oritur actio’. But courts of equity have not always followed
this stringent common law rule and have given relief to the oppressed party.
The rigours of Manu’s injunction were considerably softened by later
commentators and the receipt of bride price is recognised by Yagnyavalkya as a
well- recognised custom for the Mitakshara says (Ch II, 21-28).

The Allahabad and
Lahore High Courts also have adopted the view taken by the Calcutta High Court.
In Bhagirathi v. Jokhu Ram4 , it was held that an
alienation of family property for raising sulka or bride-price was held to be
binding on the sons of the alienor.

The plaintiff’s claim
is resisted mainly on the ground that the contract is opposed to public policy
as such transactions, if upheld by courts, would, lead to sale of girls for a
price; and secondly on the ground that it is opposed to good morals as it is
clear that there was a disparity in age between the bride and the bridegroom. A
number of decisions were cited before us in support of the respondent’s
contention that a marriage brokerage contract is illegal.

It is clear, therefore,
that while marriage in the Asura form is perfectly valid, the sale of the bride
as such is prohibited. Moreover, there are Vedic passages in favour of the
custom of purchasing a woman and the Smritis, therefore, find it all the more
difficult in opposing this practice. The Manava Griha Sutra and the Kathakas
contain the ceremonials for the purchase of women, known as “Soulka
Dharma”. Here it appears to be the usual form of marriage in which the
father of the bride receives the price of the bride in gold.

If, as the court has
endeavoured to show there has been an ancient custom in this country of
receiving a bride price by the father of the girl in consideration of his
giving his daughter in marriage, it cannot be said that it is not consonant
with public policy or that it is opposed to the common weal. In the absence of
any express statutory enactment abrogating such practices, Courts are not free
to indulge in speculations as to whether such practices should be allowed to
continue, merely on the ground of public policy.

To sum up, the
following principles may be taken as well established:

i.          A marriage is presumed to be in the
Brahma form until the contrary is proved; and the party alleging it to be in
the Asura form has to prove that there was a sale of the bride.

ii.         Even if a bride-price is paid, the
marriage itself does not become invalid.

iii.        The injunctions of the Smritis against
the acceptance of a bride-price are only directory, and an infringement of the
texts does not render the marriage invalid.

iv.        The custom of receiving bride-price has
been so well-established throughout the country that it is too late in tile day
to invalidate marriage on the ground of public policy, nor can such marriage
contracts be held to be immoral or illegal in the absence of a statutory
enactment expressly prohibiting the custom.

v.         If a marriage has been solemnized, the
Courts will not help a suitor to recover back the money paid by him under such
a contract, but if the agreement remains executory, the Court will direct the
recovery of the amount paid as bride price, though no suit for specific
performance of the contract will be entertained.

1 (1939) 41 BOMLR 239

2 AIR 1954 Ori 17


4 6 Ind Cas 465

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