Decided on February 01,1900



Shephard, J - (1.) The plaintiff a widow, seeks to recover from her husband's brother money expended by her on the celebration of her daughter's marriage. The plaintiff's deceased husband and the defendant were members of an undivided family, the property of which is in the hands of the defendant. It is found that the defendant, though he professes to have been ready to get his niece married, did not in fact take any steps to that end but, on the contrary, improperly refused to perform the girl's marriage. Accordingly the girl was married at her mother's cost and it must be taken that the marriage was a proper one. In the Court of First Instance no question was raised by the defendant except as to the alleged refusal of the defendant to have the marriage performed and as to the amount spent by the plaintiff.
(2.) The District Judge dismissed the suit on the ground that the defendant was under no obligation to provide for the expense of his brother's daughter's marriage. In support of this opinion he refers to some observations made in Namasevayam Pillai V/s. Annammai Ummal (1869) 4 M.H.C.R. 339, 340. The point decided in that case is that a brother in the position of the defendant in this case is not, as against his widowed sister-in-law, entitled to the absolute and exclusive right of giving the latter's daughter in betrothal. In the order of succession of the persons who should give a girl in marriage he comes before the mother, but the right or duty which devolves on him is not one which can be exercised independently of the mother. The case decides nothing with regard to the question whether the brother op the property of the family in his hands is chargeable with the cost of a marriage properly performed by the mother. There is an observation to the effect that the obligation laid on a girl's relatives is not an enforceable legal obligation, but, it is also said that if the mother improperly declines to accept a suitable bridegroom, she might be compelled by suit to provide means for the celebration of the marriages. It Was in effect argued before us that as the defendant was not compellable to give the girl in marriage himself, he could not be called upon to pay the costs incurred by anybody else. This was evidently not the view taken by this Court in 1869, for if the brother could not be chargeable, neither could the mother be. There is nothing inconsistent in holding that the person possessed of family property and chargeable in respect thereof with the maintenance of unmarried girls is also chargeable with the cost of their marriages though he himself does not choose to give them in marriage. The object of specifying several persons who may give a girl in marriage is to ensure the celebration of her marriage. It has no reference to the question upon whom the expenses of the marriage is to fall.
(3.) That the expenses are to be borne by the family property just in the same way as the cost of maintenance there seems no doubt upon the authorities. (See Tulsha V/s. Gopal Row (1884) I.L.R. 6 A. 682. West and Buhler 754 and Mayne's Hindu Law, Secs.81 and 408). For these reasons, I hold that the defendant can be made liable for the expenses of his niece's marriage, the same having been property incurred. But, it is argued, that the girl herself, not her mother, ought to have been plaintiff in the action. This is a new point not taken in the Court of First Instance. It is argued that although the defendant may be liable for the expenses of the marriage, the plaintiff's daughter is the person in whom the corresponding right resides, just as it would be if the daughter's maintenance were in question. I think there is a clear distinction between the two cases. The right to maintenance is purely personal and in point of law exists solely for the benefit of the person to be maintained. In the case of marriage, on the other hand, it is not only the bride that is concerned. Marriage according to Hindu Law involves the idea of gift and the mother may be a party to the transaction in giving her daughter in marriage When the mother has lawfully undertaken this part and in consequence has incurred expense, she can, as I conceive, claim the advantage of the obligation which the law recognizes. The object which the law has in view, namely, the procuring of the marriage of the daughter, would be frustrated if the obligation to provide means for it could not be enforced by the member of the family on whom the duty of giving the girl in marriage devolves. In addition I think the plaintiff was within the meaning of Section 69 of the Indian Contract Act interested in making the payment which has given rise to the action. It is not necessary that she should prove that she was compelled to make it or that she made it at the defendant's request.;

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