Report No. 13
47. Section 23.-
Pollock and Mulla,1 point out that the correct expression is the 'consideration for a promise' and not 'the consideration of an agreement'. Strictly speaking this criticism is correct. Even the existing language, however, can possibly be justified on the ground that an agreement consists of a promise or promises. Be that as it may, we do not think it necessary to alter the language of the section in this respect, particularly when we are not aware of any case in which the existing language has created any difficulty.
1. Pollock & Mulla; Op. Cit., p. 154.
48. In considering the validity of a contract in relation to marriage, the Hindu Marriage Act, 1955 and the modern trends in society have to be borne in mind. Under that Act the bridegroom must complete the age of eighteen and the bride fifteen years to qualify for marriage. Where the bride has not completed the age of eighteen, the consent of her guardian in marriage, if any, has to be obtained for the marriage. Thus, the cases where consent of guardian in marriage of a bride would now be necessary, are bound to be comparatively few.
No question can arise of any person acting as guardian of a bridegroom among Hindus. Before the Hindu Marriage Act, the question arose a number of times whether an agreement to pay money to a parent or guardian of a bride or bridegroom in consideration of their consent to the betrothal is immoral or opposed to public policy. The decisions have varied in result. One view1 was that every agreement to pay money to the father or guardian of a girl in consideration of his consent to her marriage is not necessarily unlawful and each case should be judged by its own circumstances.
According to this view, such an agreement would be opposed to public policy only if the parents or the guardians are not seeking the welfare of the girl but are giving her an ineligible husband. According to the other view, an agreement to pay money to the parent or guardian of the minor in consideration of his consent to give the minor in marriage is per se opposed to public policy.2 The consequence of this view is that in case of breach of agreement to give the daughter in marriage, a suit for damages does not lie and the money payable to the bridegroom's father cannot be recovered. Nor can the amount be recovered by the parent or guardian after the marriage is performed.
But, where the agreed sum has been paid in advance, the same is recoverable if the marriage is not performed. We are of the view that such an agreement should be treated as immoral and opposed to public policy, and we suggest that in order to resolve this conflict in judicial decisions, a section should be added declaring that a marriage brokage agreement, i.e., an agreement to procure marriage for reward and an agreement for payment of money in consideration of a parent or guardian's consent to the marriage of the child, whether major or minor is unlawful and void.
1. Baldeo Sahai v. Jumna Kunwar, 23 All 495.
2. Kalavgunta Venkata Kristnayva v.Kalavgunta, 32 Mad 185 (FB).
49. There is also a conflict of authority on the question whether past cohabitation is lawful consideration. One view1 is that an agreement to pay the allowance by reason of past co-habitation is really an agreement to compensate the woman for past services voluntarily rendered to him for which no consideration is necessary. Another view2 is that past co-habitation is not a good consideration for the promise to pay for it, and that a consideration which is immoral at a time, and, therefore, would not support an immediate promise to pay, does not become innocent by being past.
The Patna High Court3 took the view that a contract to enter into the relation of a protector and mistress was immoral and unenforceable in law; but the case of a contract to compensate for what she had lost on account of past association with the promisor was not immoral. The Allahabad High Court4 has taken the view that adultery, in India, being an offence against the criminal law, co-habitation, past or future, if adulterous, is not merely an immoral but an unlawful consideration. In England, such an agreement is void on the ground that past co-habitation is no consideration. In the American Restatement, the law is thus stated:
1. Dhiraj Kaur v. Bikramajit Singh, 3 All 787.
2. Hussain Ali v. Dinbai, AIR 1942 Bom 135.
3. L.B. Godfrey v. Mt. Parbati, AIR 1938 Pat 502.
4. Alice Mary HIll v. Willian Clarke, 27 All 266. Cf. Mt. Mahtabunnissa v. Ria Faqat Ali, AIR 1925 All 474.
"A bargain, in whole or in part, for or in consideration of illicit sexual intercourse or a promise thereof, is illegal but subject to this exception such intercourse between parties to a bargain previously or subsequently formed, dotes not invalidate it."1
1. American Restatement on Contract Vol. 2, section 589, p. 1095.
We are, however, of the opinion that in view of the fact that such cases rarely come to the Courts, no specific legislation on the subject is necessary.
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