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Present: Lascelles C.J. and Middleton J.ABDUL HAMEED v. PEER CANDO et al.306—D. C. C olomho, 32,183.
Marriage brokage—Agreement by afather togivehisdaughter inmarriage
to another and to pay damages in default—Legality.
An agreement whereby defendant covenanted to give hiedaughter in marriage to theplaintiffwithinsixmonths,and in
case of default to pay a stunof Ks. 1,000totheplaintiffby way
of liquidated damages, was held not to be an illegal contract.
Middleton J.—It is certainly not wrong or illegal for a parentto influence his daughter on thesubjectof marriage,andthe pre-
sumption would be that such influence was used for her benefit bya person more experienced thanhereelf,and whereanagreement
has been made apparently with the consent of both daughterand parent that she should marry someone,Icansee noevil, or
illegality in the parent rendering himself responsible in damagesif the daughter declines to keep her promise.
Lascells C.J.—The agreementnowsued onisessentially
different from a marriage brokageccntract,where oneof the parties,
in consideration of some benefit to herself, engages to procure orbring about a marriage.
HE facts are set out in the judgment.
Bau-a (with him Samarawickreme), .for defendants, appellants.—The agreement in question is in the nature of a marriage brokagecontract, and it is illegal. Halsbury’s Laws of England, vol. Vll.,p. 397; 3 Maasdorp’s Institutes 18, 21; Cole v. Gibson:1 DukeHamilton v. Lord Mahun:- Hermann v. Charlesworth;3 HendrickSinno v. Harmanis Appu*
If this contract is recognized by law, the father would not betree to cunsult the best interests of the child in such an importantmatter as her marriage. The English law is very clear on thesubject; and what isagainst publicpolicyunder the English law
isalso against public policy underpurlaw.We have, for instance,
recognized the principle of absolute privilege of English law as tostatements made by a witness in the box.
van Langeriberg (with him Allan Drieberg), for the respondent.—In this case the marriage was agreed upon before the contract.The agreement was not for obtaining the consent of the daughter;
i (1750) Vesey Senior503.3 (1905) S K. B. 123.
* (1710) 1 Peers andWUliamt U8.« (1879) 2 S. C. C. 136;
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that had been obtained before. The cases cited are therefore notin point. Agreements of this kind have always been recognizedin Ceylon. See the cases referred to by the District Judge (cited byMiddleton J.).
Bawa, in .reply.
Cur. adv. vult.
December 12, 1911, Middleton J.—
This was an action to recover the sum of Rs. ljOOO'as damages forbreach of a notarial agreement. The agreement, dated October 28,1907, No. 1,165, recited that the plaintiff and first defendant hadagreed that the plaintiff shoyld marry his daughter Sittie Johara,and to give a dowry1 on the marriage, upon which the plaintiffcovenanted to marry the first defendant’s daughter within sixmonths from the date of the agreement, and the first defendant togive his daughter in marriage within the time stipulated, and to payand assign the dowry as agreed upon. In case the plaintiff refused,neglected, failed, or objected to marry the said Sittie Johara withinthe time limited, he agreed to pay the sum of Rs. 1,000 as liquidateddamages. And in case the first defendant refused, neglected, failed,or objected to give his daughter in marriage to the plaintiff withinthe time agreed on, he was to pay a similar sum of money by wayof liquidated damages. The second defendant bound himself as asurety for the fulfilment of the agreement.
On the case coming on for trial it was adjourned with a view to asettlement by carrying out the marriage, but when the case cameup again, the first defendant’s counsel admitted that the first defend-ant had failed to give his daughter in marriage because she refusedto marry the plaintiff.
The learned Judge has framed certain issues, which he statesin his judgment he would not have framed had he known that thefirst defendant was relying on a refusal by his daughter to marrysubsequent to the adjournment.
Upon the evidence the District Judge disbelieved the case for thedefendant, and, finding that the defendants put off the marriage witha view to evading the agreement entered into, held that he hadfailed and neglected to give Sittie Johara in marriage to the plaintiff:and upon further issues settled as to whether the plaint disclosed thebreach of an agreement enforcible in law, and as to the amount ofdamages, gave judgment for the plaintiff for Rs. 1,000.
The defendants appealed, and for- them it was contended that theagreement in question came .within the. evil of marriage brokagecontracts, or contracts for the purpose of procuring a marriage, andthe case of Duke Hamilton v. Lord Mahun1 and other cases , cited atpage 397 of vol. VII. of the Laws of England were relied upon. It
1 (1720) Peere and Williams 118.
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seems that the evil aimed at under these decisions was the intro- 1911,duction of a money payment for the procuring of it marriage, which middletom.should be free from any such taint—per Collins M. B. in Hermann t. J.CkarlesworthAbdul
The agreement in this case under consideration was not to procurea marriage between the parties for a money payment, but a covenantby a father of a promise to marry already made by him for and onbehalf of his daughter, to which she apparently assented at the timethe promise was made. It is not tainted with the evil aimed at inCole v. Gibson2 or the cases already referred'to, nor can I see that theobligation of the father to pay money on the breach of the promiseto marry by the daughter involves any greater evil or is morecontrary to the policy of the law than obligation of the daughterherself to pay damages in case of a personal breach by her.
In the case of Tollegodegamegay v. Balagamegay (1838), reportedin Morgan*8 Digest in pp. 206 and 211, the judgment of the SupremeCourt says: " It appears, however, to have been universal in thisIsland, under every system of law that obtains here, to introducethe parents on these occasions (marriage contracts) and to renderthem responsible in Sotidum with the children, whatever theirage, to marriage engagements entered into, though verbally withtheir consent; and as there is nothing unreasonable or contraryto an express law in this usage, the Court does not feel inclined todisturb it.'*
The cases of Abeyratne v. Perera et aL,3 D. C. Negombo 447,4D. C. Colombo 68,034,5 Hendrick Sinno v.. Harmanis Appu,*Tammcdarampillai v. Tangamuttupillai,7 and Fernando v. Fer-nando* cited by the learned District Judge, would appear tocountenance the legality of the contracts referred to in Morgan'sDigest. It is argued that it is illegal for a parent to bind himselfunder a penalty to influence the feeling of his daughter towards a •marriage; but this is not the case here, as the agreement to marryhad been made when the contract was entered into. It is certainlynot wrong or illegal for a parent to influence his daughter on thesubject of marriage, and the presumption would be that suchinfluence was used for her benefit by a person more experienced thanherself, and where an agreement has been made apparently withthe consent of both daughter and parent that she should marry someone, I can see no evil or illegality in the parent rendering himselfresponsible in damages if the daughter declines to keep herpromise. In my opinion the decision of the learned District Judge-is right and should be affirmed, and I would dismiss the appealwith costs.
i 11905) 2 K. B. 123 C. A.* (1750) Vesey Senier 503.a (1859) 3 Lot. 235.
< (1871) Vanderstraaten 177.
Ram. (1877) 362.
« (JS79) 2 8. C. C. 136.» (1887) 2 8. C. R. 61.
4 N. L. R. 285.
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AbdulHameed v.Peer Cando
I entirely agree with the judgment of my brother Middleton. Theagreement now sued, on is essentially different from a marriagebrokage contract, where one of the parties, in consideration of somebenefit to herself, engages to procure or bring about a marriage.
In the present case the marriage had been arranged, and thefather binds himself under a penalty that he will give his daughterin marriage within a stated period, meaning that he would use hisputrid potestas, which in persons of his class is very great, to havethe marriage celebrated. The District Judge, I think, has rightlyrejected the evidence that first defendant’s daughter had refusedor was unwilling to marry the Plaintiff.' There is, therefore, noquestion in the present case of any attempt on the part of the firstdefendant to coerce his daughter to marry against her will, or of anyinducement to run or,take that course.
ABDUL HAMEED v. PEER CANDO et al