JUDGMENT
Viswanatha Sastri, J.
1. This is an unfortunate dispute between a wife and her husband, appellant and respondent respectively in this second appeal. The spouses have been living apart since 1936 owing to misunderstandings and their three minors daughters have been living with the mother since then. The wife sued her husband and obtained a decree for the maintenance of herself and her children. The eldest daughter though a minor, attained marriageable age in 1942 and was got married by the mother, the father having taken no interest in the affair. The suit out of which this second appeal arises was filed by the wife against her husband for the recovery of a sum of Rs. 1,000 stated to have been spent by her in connection with the marriage of the daughter. The suit was decreed by the District Munsif. On appeal the learned Subordinate Judge held that though the wife might have spent Rs. 1,000 in connection with the marriage, she could not recover it from her husband, he being under no legal obligation to get his daughter married. The wife has therefore preferred this second appeal.
2. In Sundari Ammal v. Subramania Aiyar, 26 Mad. 505, Davies and Bhashyam Ayyangar JJ. held that a Hindu father was under no legal obligation to get his daughter married and that a wife who expended money on her daughter’s marriage in circumstances like the present, was not entitled to recover it from her husband. The learned Judges followed an earlier decision of a Bench of this Court in Seshammal v. Muniswami Mudaliar, 8 M. L. J. 105, which held that a Hindu father was under a moral but not a legal obligation to get his daughter married. In Subbayya v. Anantaramayya, 53 Mad, 84: (A. I. R. (16) 1929 Mad. 586 P. B.), Ramesam J. referring to these two decisions observed:
“In those cases it does not appear that the father was a member of the joint family or had ancestral property. The cases were discussed on the footing of the general obligation of a father to maintain or marry his daughter and it was held that the father was not under an obligation to marry his daughter. On the other hand, it may be said that at least among Brahmins anil Vaisyas with whom pre-puberty marriage is compulsory as a religious injunction, the father is legally bound to-marry his daughter.”
It may not be possible to support this last observation of the learned Judge on the grounds stated by him, because as the combined result of Act XIX [19] of 1929, modern economic conditions and a widespread disapprobation of infant marriages, pre-puberty marriages are now rare even amongst Brahmins and Vaisyas. But this is not to say that the old family ties have snapped or that parents have ceased to regard the marriage of their daughters as their responsibility. In the latest edition of Mulla’s Hindu Law (page 530), it is stated that the decision in Sundari Ammal v. Subramania Aiyar, 26 Mad. 505, requires reconsideration, without, however, stating any reason for that opinion, beyond a reference to Subbayya v. Anantaramayya, 53 Mad. 84: (A.I.R. (16) 1929 Mad. 586 F.B.) which, however, dealt with the liability of joint family property to meet the expenses of the marriage of the daughters of the family. It has now been authoritatively held by the Judicial Committee that in the case of an unmarried daughter,
“her right to maintenance and marriage expenses out of joint family property is in lieu of a share on partition; a provision should accordingly be made for her marriage expenses in the decree (for partition)”, Rajagopala Aiyar v. Venkataraman, 1947-2 M. L. J. 37: (A. I. R. (34) 1947 P. C. 122).
Where, however, there is no joint family property, is the father under a legal obligation to have the marriage of his daughters performed or is the duty merely a moral one as decided by this Court? It is true, as pointed out by Mr. Vepa Sarathi for the appellant, that popular sentiment might not wholly endorse the view taken by the two decisions of this Court already cited and a learned Bengal lawyer of the orthodox school has expressed his dissent from the decisions of this Court in strong language. Sircar on Hindu Law, 6th edition, pages 151 and 155. It is true that according to the Hindu law-givers, marriage is a necessary samskara for a Hindu girl of any caste. On this point it is unncessary to refer to the texts of Hindu law which are all assembled in the admirable judgment of Krishnaswami Ayyar J. in Kameswara Sastri v. Viracharlu, 34 Mad. 422: (8 I. C. 195). Marriage, though primarily a sacrament, also partakes of the character of a contract according to the view of Hindu legists. The Mitakshara even provided a remedy by way of restitution of moneys paid and expenses incurred with interest thereon, if the marriage fall through owing to the default of any of the parties: see Yagnavalkya, Chap. I, versa 65 and Mitakshara 11-11-26 to 28; Balu Bhai Hiralal v. Nana Bhai, 44 Bom. 446 : (A. I. R. (7) 1920 Bom. 225).
3. The appellant’s learned advocate relies on the well-known passage of Yagnavalkya (1-53-64) in support of his argument that it is the imperative duty of the father to get his daughter married before she attains puberty. The passage is as follows:
“The father, the paternal grandfather, the brother, a Sakulya or members of the same family, the mother likewise, in default of the first, the next in order if sound in mind, is to give a damsel in marriage; not giving becomes tainted with the sin of causing miscarriage at each of her courses; in default however of the (aforesaid) givers let the damsel herself choose a suitable husband.”
The order of guardianship in connection with the marriage of a minor girl given above is eon-fined to the giving of the girl in marriage, where ceremonial competency is requisite for the person giving away the girl in marriage. The dire Spiritual penalties–fantastic though they might appear to modern minds–attaching to the omission to give a girl in marriage before puberty, is said to be indicative of the peremptory nature of the duty cast upon the father. But then, not merely the father but even other relations are subject to the same penalty under the text above cited and it can hardly be supposed that a man is under a legal obligation at the present day to have the marriage of all his female relations suitably performed, even though the parents neglect their duty in this respect. There is also reason to believe that in Vedic times adult marriages were common and some of the hymns cited in connection with the marriage ritual would be singularly inapt to consecrate the union of spouses who have not attained puberty. It is only in the age of the Sutra writers and Smritikars that pre-puberty marriage of girls came to be insisted upon. Even these writers give the girl a right to choose a husband for herself if she remained unmarried for three years after attaining puberty — Manu, Chap. IX verse 90; Bodhayana IV-1, 14. The text of Yagnavalkya cited in the beginning of this paragraph does not therefore support the appellant to the full extent of his argument. At best it lays a moral or spiritual duty or obligation on the father.
4. It is next pointed out that a Hindu is under a legal obligation to maintain his wife, his minor sons and unmarried daughters whether he possesses any joint family property or not. This is a matter of personal obligation but it is doubtful whether this obligation extends beyond providing food, raiment and residence and under modern conditions, some measure of education, conformably to the status, social position and financial resources of the family. Mr. Vepa Sarathi would extend this obligation to the provision of expenses for the marriage of a minor daughter as well, on the strength of a decision of Horwill J. in Rahima Bibi v. Sharfuddin, 1946-2 M. L. J. 305: (A. I. R. (34) 1947 Mad. 155). The learned Judge there held that the principle underlying section 68, Contract Act, applied to the marriage expenses of minor Hindu girls and extended the same reasoning to the marriage of a minor Muhammadan girl. I am not sure whether the marriage of an infant girl can be brought under the head of “necessaries”. Marriages arranged for infants sometimes serve to emphasise the blessedness of the single state and in many cases the marriage of an infant girl is a leap in the dark so far as the girl herself is concerned. Marriage expenses would not come under the head “infant’s necessaries” under the English law on which Section 68, Contract Act, is modelled. It is true that “necessaries” under Section 68, Contract Act, have not been confined by the decisions to such things as are necessary to the support of life, but have been extended to the other needs of a person appropriate to the station in life which he or she occupies. The incurring of expenditure for the performance of a moral and social, if not legal duty, cast on the minor which it would have been scandalous or improper to omit, might also be brought within the terms of Section 68, Contract Act, as held by Horwill J. Be this as it may, the claim for reimbursement in this case is not against the estate of the minor but personally against her father and Section 68, Contract Act, would not therefore apply. Under Section 69, Contract Act, the appellant must show that the respondent was bound in law to pay for the expenses of his daughter’s marriage, which the appellant, as a person interested in the payment, incurred out of her own funds. The interest contemplated by Section 69, is an interest resting on the apprehension of some pecuniary loss, inconvenience or detriment and not an interest based on grounds of mere sentiment or moral or social obligation. Section 70, Contract Act, would also not apply to the present case. It is not in every case where one person pays or spends money which should have been paid or expended by another that an obligation to repay arises:
“The question is not to be concluded by nice considerations of what may be fair and proper according to the highest morality. To support such a suit there must be an obligation, express or implied, to repay”. Ram Tabul Singh v. Bisesswarlal Sahoo, 2 I. A 131 : (15 Beng. L. R 208 P. C.), quoted in Man Mohan Das v. Janaki Prasad, 1945-1 M. L. J. 97 : (A. I. R. (32) 1945 P. C. 23).
It is true that the decisions of this Court in Sundari Ammal v. Subramania Aiyar, 26 Mad. 505 and Seshammal v. Munisami Mudahar, 8 M. L. J. 105, do not state any reasons for the conclusion reached by the learned Judges. I cannot, however, sitting as a single Judge, ignore them on that ground or presume that the considerations I have adverted to above were not present to the minds of the learned Judges who decided those two cases In the present case, there is no averment, evidence or issue about the existence of any joint family properties in the hands of the defendant out of which the daughter could legally claim payment of her marriage expenses on the principle of the decision in Subbaya v. Anantaramayya, 53 Mad. 84: (A.I.R. (16) 1929 Mad. 586 F. B.). The claim has been rested only on the personal legal obligation of the defendant which extends to the maintenance of his wife and minor children under all systems of law. The obligation to defray the expenses of the marriages of his sons and daughters is cast by the Hindu law upon a father only if there is any joint family property in his hands and not in other cases. I am bound by the decisions of this Court though they lead to results which I may privately regret.
5. The defendant is a member of the legal profession and has paid a sum of Rs. 500, irrespective of the legal merits of the controversy. This attitude is commendable so far as it goes, but I cannot help expressing my regret that it was not found possible to make a further concession to the unlucky wife and daughter in question especially when the husband has taken a second wife and the estrangement between him and his first wife and his children by her has become complete.
6. The second appeal is dismissed, but there will be no order as to costs either in this or in the lower appellate Court, No leave.
