Bhagirathi vs Jokhu Ram Upadhia And Ors. on 5 May, 1910

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Allahabad High Court
Bhagirathi vs Jokhu Ram Upadhia And Ors. on 5 May, 1910
Equivalent citations: 6 Ind Cas 465
Author: Richards
Bench: Richards, Tudball


Richards, J.

1. This appeal arises out of a suit to enforce a mortgage. The facts are that one Madho Singh and one Bindesri Singh were own brothers. Bhagwati Singh was the son of Madho Singh. Bhagwati Singh married for the first time and had a son named Bhagirath Singh who is the principal defendant in the suit and the sole appellant in this Court. The first wife of Bhagwati having died, he married a second time. At the time of this marriage Bhagwati Singh and Bindesri Singh, as managing members of a joint Hindu family, executed the bond which is the foundation of the present suit. The property mortgaged was joint family property and it has been found by the Courts below that the money which was raised on the bond was applied in making a payment to the father of the second wife of Bhagwati Singh. In other words, it was the price paid for the bride. Both the Courts below decreed the suit. It has been contended on behalf of the appellant, first, that the marriage expense of a member of a joint Hindu family is not a legal necessity; for which the family property can be pledged; secondly, that, even if the first marriage can be regarded as a family necessity, a second marriage cannot be so regarded, and, thirdly, that, even assuming that a first and second marriage can be regarded as family necessity, money raised for the purpose of purchasing a bride can, under no circumstances, be considered family necessity. The first point was not very strongly pressed and the only authority was the case of Govindrazulu Narasingham v. Devarabhotta Venkatanarasayya 27 M. 206 : 14 M.L.J. 179. In that case a Bench of the Madras High Court held that an alienation by a Hindu father for the purpose of defraying the marriage expenses of one of his four sons was invalid. This ruling was considered by the Bombay High Court in the case of Sundrabai Javji Dagdu Pardeshi v. Shiv Narayana Ridkarna 32 B. 81 : 9 Bom. L.R. 1366 : 3 M.L.T. 44. Judgment of the Court was delivered by Mr., Justice Chandavarkar and the learned Judge points out that the Madras High Court proceeded on a misinterpretation of the texts relied on in their judgment. He also points out-that the sacraments were not complete until after the marriage of the son had been duly celebrated. I entirely agree with the judgment of the learned Judge. He was, however, dealing with the ease of a first marriage and it has been contended that where a member of a joint Hindu family has been legally and properly married for the first time, all the sacraments enjoined by the Hindu religion have been performed, and that a second marriage, no matter how desirable, is no longer necessary for the celebration of these sacraments, and that, therefore, even admitting that the ruling of the Madras High Court cannot be supported, a second marriage is not a family necessity. At page 95 of the judgment reported in the case of Sundrabai Javji Dagdu Pardeshi v. Shiv Narayana Ridharna 32 B. 81 : 9 Bom. L.R. 1366 : 3 M.L.T. 44, the learned Judge says: “After this, I need perhaps hardly add that, to those who are familiar with the usages of joint Hindu families, the proposition that the marriage of a co-parcener in such a family does not constitute a family purpose so as to make all the co-parceners liable for the expenses of the marriage, mint appear startling. The very idea of a joint Hindu family is that it must be kept up and continue so long as the family is joint and all the co-parceners wish to continue joint in estate; in the marriage of each co-parcener for that purpose every other co-parcener is interested, and so far as I am aware, it is upon that principle that the mutual relations of co-paroeners in Hindu families have been regulated up to this day”. Although the learned Judge was dealing with the case of a first, marriage, it seems to me that the view expressed in the passage above quoted, coming as it does from a very learned Hindu Judge, is entitled to very great weight. There can be no doubt that it is desirable and it is the natural condition of every adult male member of a joint Hindu family that he should be married. In the case of a Hindu, whose wife had died before the birth of a son, it would be considered a great calamity if he could not marry a second time. So long as the family is joint the marriage expenses must, come out of the family property. The very essence of a joint undivided family is that all the property is joint. In the present case I think I am entitled to assume and ought to assume that a second marriage from the family point of view of Bhagwati Singh was desirable. He was apparently about 23 years of age and had only one son, the appellant, who must at that time have been a boy of nine years of age. It is true that there are no express findings on this subject but I think the presumption is a fair presumption warranted by the circumstances of the case. The evidence on the point stands unrebutted. It seems to me, therefore, that the expense of a second marriage of this nature is a proper family expense and such family necessity as would warrant the managing member of the family in pledging the family estate. The last point is the question whether assuming all this, the raising of money for payment of the price for the bride can be regarded as a legitimate marriage expense. The form of marriage where money is paid for the bride is called the Asura form. There is no doult that this is one of the forms of marriage which is not approved. On the other hand it cannot be argued for one moment that such a marriage is illegal or that the children of such a marriage are illegitimate. It has been conceded in argument that once such marriage is performed, it is as valid as any other form of marriage. It is also admitted that in many parts of India, particularly in those parts where the male population exceeds the female, this form of marriage is quite common even amongst Brahmins. At page 96 of Mayne. Hindu law the author quotes. Manu: “Let no father, who knows the law, receive a gratuity, however small, for giving his daughter in marriage, since the man, who, through avarice, takes a gratuity for that purpose, is a seller of his offspring”. The learned Vakil for the appellant also relied on a passage from Mayne’s Hindu Law at pages 389 and 395, where the learned author refers to certain debts which are not payable by sons. One class of debt is said to be “culka” which is sometimes translated as tolls. The author says: Another meaning of the word “culka” translated toll, is a nuptial present given as the price of a bride and this has been determined no to be re-payable by the son, apparently on the ground that it constitutes the essence of one of the unlawful forms of marriage”. We have been unable to find any authority for the above proposition. It seems to me that bearing in mind that this form of marriage is quite common and that the purchase of a bride in this sense is quite common, we cannot hold that the money which was raised was not part of the marriage expenses of a legal marriage. With regard to the text of Mann already cited, it is evident that the text of Manu has only been regarded as a disapproval of that particular form of marriage and not as forbidding it. Furthermore, the injunction is an injunction to the father of the girl against receiving the money and not an injunction against the husband from paying it. I would dismiss the appeal.

Tudball, J.

2. I fully concur and have very little to add. I do not think that in all cases of second marriage a Court will be able to hold that second marriage constitutes “lawful family necessity”. A first marriage, beyond all doubt, does constitute a “lawful family necessity” for the reasons given by Mr. Justice Chandavarkar in the case of Sundrabai Javji Dagdu, Pardeshi v. Shiv Narayana Ridkarna 32 B. 81 : 9 Bom. L.R. 1366 : 3 M.L.T. 44. But there are clearly eases in which a second marriage constitutes a family necessity equally with a first marriage in the eyes of Hindu society. There is an injunction on every male Hindu, who enters the form of life of a householder, that he should beget a son for very clear and definite purposes. There are religious ceremonies, e.g., the agnihotri, to be performed by a man, which demand the active aid and assistance of his wife. There are many instances of a Hindu wife dying in her chjldhood and I think it would be repugnant to the ideas prevailing among Hindus to hold that a second marriage in such a case would not be an absolute necessity or to hold that defraying of expenses of such a marriage would not be a lawful and proper charge on the family. A member of a joint Hindu family in such a situation, i.e., whose wife had died in childhood, who wished to obtain a second wife, would otherwise have to seek for partition and break up the joint family before he could do that which the Hindu law enjoins on him as a duty. I have no hesitation in holding that, in such a cases as this, the carrying out of a second marriage would be the duty of the manager of they family and he could, in order to meet the expenses, charge the family, property. The circumstances of the present case, in my opinion, fully justify the expenditure which was incurred by the uncle of Bhagwati Singh. Bhagwati Singh was a young man whose wife had died leaving in his charge a young child. It was but natural that he should seek to obtain another wife. It was not a case of a man marrying a second wife while the first was alive; nor of an elderly man (with sons and grandsons alive,) seeking to take to himself without justifiable reason a second wife. In the circumstances of the present case it would be impossible to hold that there was no justifiable necessity. The necessity was clear and the uncle of Bhagwati Singh was fully empowered to incur the expenditure. As to the form of marriage it seems to me that it is more or less immaterial. What that form was, provided it was legal and binding and the money was properly spent in carrying it out. In this view’ of the case, I would also dismiss the appeal.

3. The appeal is dismissed with costs including in this Court fees on the higher scale.

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