Madhya Pradesh High Court
Noor Mohammad vs Mohammad Jiajddin on 14 December, 1990
Equivalent citations: 1991(0)MPLJ503, AIR 1992 MADHYA PRADESH 244, 1991 MPLJ 503 (1992) 1 CIVLJ 139, (1992) 1 CIVLJ 139
JUDGMENT T.N. Singh, J.
1. A forsaken bride's pride and honour is put at stake by her father. A challenging problem of gender justice of a rare kind begs solution in this appeal. Court below has decreed his suit, which was a hybrid action founded on law of tort and contract. Appellant is bridegroom's father, impleaded as defendant No. 1 in the suit. He is held liable under the impugned judgment and decree to pay Rs. 7,700/- to bride's father, plaintiff/respondent No. 1.
2. Ruksana's marriage (nikah) was solemnized on the morning of 16-4-1976 with Sher Mohammad, defendant No. 2, son of defendant No. 1 appellant. At the time of nikah consent of the bride was given by plaintiff as she was minor. Plaintiff's father's case is that on the preceding evening the Barat (bridegroom's party) came from village Balapura to his house at Datarda village (both in Sheopur Kalan Pargana) and that it consisted of about 250 persons. He had arranged meals for them and for the invited guests who were about 2,000. He had spent Rs. 6,000/- in that connection. He had paid cash Rs. 2,000/- to defendants for expenses claimed by them for Gas-lights, Band etc. accompanying the Barat. They claimed also payment for the nautch-girl, which the plaintiff refused. Defendants and the Barat returned in the afternoon leaving back the bride on being angry with the plaintiff for his refusal to pay for the services of the nautch-girl accompanying the Barat. Plaintiff was a man of status and as a result of the barat returning without taking with them the bride he suffered loss of reputation as the occasion was witnessed by the invited guests who were responsible persons. The bride was dishonoured and was neglected for two years as defendants took no steps during that period to take her away to the matrimonial home. The cause of action for the suit according to him was occasioned when desired to divorce the bride was expressed on 15-2-1978. The suit was filed on 20-3-1978 claiming Rs. 6,000/- as expenses for meals, Rs. 2,000/- paid cash and Rs. 3,000/- for loss of reputation.
3. Defendants filed a joint written statement claiming that the Barat consisted of 50 persons only and another 200 to 300 persons attended the marriage as guets and invitees of the plaintiff; that only two meals were served to the Barat; that no payment was made to them for Gas-light and Band by the plaintiff to whom they made no demand even for the services of the nautch girl. They admitted the marriage but claimed that the plaintiff quarrelled with them and drove away the Barat refusing to send the bride with them. They admitted that plaintiff gave consent for marriage on bride's behalf but claimed that she was major and was competent to give consent herself. They set up the case that at the time of showing the dowry the bridegroom was abused and was told by plaintiff's mother that he could take away dowry and also the bride if he agreed to live under the toe of her shoes. When defendants wanted dates for bidai (for taking the bride to matrimonial home) the plaintiff avoided them. Defendant No. 2 (bridegroom) had gone to plaintiff's place accompanied by Maiuddin, Kaji Wajiu-rulla, Munshi Hassan Mohammad and Salamatulla to bring home the bride but plaintiff refused to send his daughter. Defendants had not insulted the bride and the claim was false.
4. Trial Court framed six issues on the above pleadings and on discussion of the evidence adduced by parties decided the material issues in plaintiff's favour. It was found and held that plaintiff had suffered loss of reputation and on that ground he was entitled to be compensated for mental pain and suffering in the sum of Rs. 3,000/- by defendant No. 1. For serving two meals to the bridegroom's party and guests on the occasion of the marriage plaintiff was found to have spent Rs. 2,700/- and he was held entitled to claim reimbursement of that amount from defendant No. 1. It was also found that Rs. 2.000/- was paid in cash by the plaintiff to defendant No. 1 which the latter was liable to refund. The case set up jointly in written statement by the defendants was disbelieved mainly on the ground that the bridegroom (defendant No. 2) could have proved that and his failure to enter the witness-box was fatal other important witnesses too had not been examined. Although the bar of limitation was not pleaded and there was no issue on that point, it was held that the suit was governed by Article 113, and not by Art. 78, Limitation Act, 1963. Accordingly, it was held to be within time. Defendant's plea that they were entitled to be paid Rs. 3.000/- by the plaintiff as costs for false and vexatious claim was rejected.
5. Although it is a first appeal and trial Court's findings of fact are not binding on me, there is no scope to reach a different conclusion on facts as only oral evidence was adduced by parties. Plaintiff and his witnesses have been believed; the other side has been disbelieved. It is held in Sarju Pershad, AIR 1951 SC 120, that if the decision in the case depends on appreciation of oral evidence in the case, the appellate Court has to bear in mind that it has not the advantage which the trial Court had in having the witnesses before him and of observing the manner in which they deposed in Court. When the decision hinges upon credibility of witnesses the appellate Court should not interfere with the finding of the trial Judge on a question of fact "unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is sufficient balance of improbability to displace his opinion as to where the credibility lies." This view was buttressed in Madhusudan, AIR 1983 SC 114.
6. Of the witnesses examined by the plaintiff, P.W. 3 (Gaffur) and P.W. 4 (Ratanlal) deposed that they had prepared the meals and they also proved the expenses incurred in that connection. On their evidence trial Court has allowed plaintiff's claim partly, to the extent only of Rs.2,700/- as against Rs. 6,000/-. I see no reason to disbelieve them or to disturb the finding reached by the trial Court on their evidence. The question whether legally the claim was rightly allowed will be examined in due course. Indeed, legality of another claim of reimbursement of Rs. 2,000/-, as cash payment made by plaintiff to defendant No. 1, is also to be examined. At this stage it may however be examined in this context whether on facts that payment has been established and trial Court's finding in that regard is to .be affirmed. Besides the plaintiff, who deposed of making that payment, P.W. 2 Allauddin and P.W. 6 Sukhdev Singh stated that payment was made in their presence. Trial Court was impressed by the evidence of P.W. 6 as he was an independent witness who was not related to any of the parties and witnesses. Indeed, D.W. 3 Ayub and D.W. 4 Maiuddin were both closely related to the defendant and their evidence has not been accepted though they supported defendant No. 1 who deposed as D.W. I. Plaintiff's evidence also that of P.W. 6 found support in the admission of D.W. 1 that a truck was hired for bridegroom's party and that there were Gas-lights and Band in the bridal procession. Defendants did not adduce any evidence of payment made by them for those services.
7. What remains to be examined on facts is the core of the controversy. Whether defendant No. 1 demanded payment to be made for the services of the nautch-girl? Also, whether case set up by defendants is true?
Was the Barat sent back without the bride and whether the bridegroom was insulted when dowry was being shown? Two distinctive and important features of evidence in this regard are noteworthy. Defendant No. 1 admitted in his evidence that a nautch-girl did really come with them and the other equally important fact noticeable is that the bridegroom did not enter the witness-box to prove the case set up which rested on his direct testimony. He was the best person to depose if he was insulted in the manner suggested. Trial Court has rightly held that default of defendants as fatal. Indeed, the weakness of the defendant's case is also supported by their further default of not suggesting to the only independent witness (D.W. 6) their case though he was grilled on different aspects of the plaintiff's case. He fully supported the plaintiff (P.W. 1) by deposing that Naruddin (defendant No. 1) had demanded Rs. 310/- for payment to the nautch-girl and that was refused by the plaintiff. At this defendant became angry and he refused to listen to entreaties of the plaintiff and his guests. Circumstantial evidence also supports plaintiff's case. Defendant Naruddin (D.W. 1) admitted that 11/2 years after the marriage he had gone to plaintiff's house to fix date for the bride to be taken to the matrimonial home and that the bride refused to come. Bride's father (plaintiff) also stated that she had repudiated the marriage as felt insulted being left back at parental home after marriage. He also stated that the bridegroom did not divorce his daughter but had instituted proceedings in Court. On the evidence discussed there is no scope to disagree with the trial Court's conclusion that plaintiff's case was true and that of defendants false.
8. To the legal questions which arise for decision in this appeal I may now address myself. All the three aspects of a Muslim marriage legal, social and religious -- are examined by Fyzee. He observes that it is a contract for the legalisation of intercourse and the procreation of children. (Outlines of Muhammadan Law, 2nd Ed., p. 73). Mahmood, J.'s dictum he cites as classic exposition of the concept: "Marriage among the Muhammadans is not a sacrament, but purely a civil contract; and though solem-
nized generally with recitation of certain verses from the Kuran, yet the Muhammadan Law does not prescribe any service peculiar to the occasion."(1886) ILR8 All 149. Dr. Tahir Mahmood's view is that Muslims in India regard marriage as a "solemn occasion in life" because of its socio-religious significance. (The Muslim Law of India, p. 47). Sections 270 and 271 of Mulla's Mahomedan Law speak of a Muslim boy or girl, not attaining puberty, contracting marriage through guardian (e.g. father or paternal grandfather) who is competent to give consent on his or her behalf. Tahir Mahmood stresses the correct position that the marriage-guardian acts as a "mediator" and the minor is not his property (supra, para 52). Indeed, the right of the minor to repudiate marriage on attaining puberty is well established; S. 2(vii) of Dissolution of Muslim Marriages Act has accorded to it statutory recognition. See also, Mulla's Section 273.
9. Essentials of a valid Muslim marriage, as summarised by Mulla, are offer and acceptance at the same sitting, by the parties to the marriage, of the proposal, in the presence and hearing of two male or one male and two female witnesses. Among the rights conferred on the bride, under a valid marriage, is that of maintenance and residence in her husband's house. See, Mulla's Sections 252 and 265. It evidently becomes the duty and obligation of the marriage-guardian to enforce those rights of the minor-bride; his right to give consent on her behalf saddles that duty on him. The bridegroom is duty bound in law to take away the bride with him immediately after the marriage. Indeed, bride's failure to accompany him as his wife, after marriage to his house, without lawful excuse, may be a valid ground for his exercise of the right of divorce. Divorce by talak by a Mahommedan male of sound mind, at any time, after he has attained puberty even without assigning any cause, is well recognized (Mulla's Section 308). Defendant No. 2 was major at the time of marriage but he did not exercise that right and the evidence is to the effect that when barat was going back without the bride the bridegroom was told by the plaintiff that he should give talak if he was not taking the bride with him. None of the defendants, it is established on evidence, heeded to the entreaties of plaintiff and his guests and the bride was left at parental home after the marriage. For at least 1 1/2 years she was forgotten and no effect was made to welcome her to the matrimonial home.
10. Plaintiff's right to demand reimbursement of expenses incurred by him in connection with the marriage can be related justifiably to his duty to the bride, as her marriage-guardian, to enforce her right of residence and maintenance at her husband's house. He had undisputed legal authority to act in her behalf in that regard by bringing an action for recovery of the expenses from the bridegroom and also his father as both, it has been established on evidence, were parties to the illegal act of denial of the right of the duly and validly marriage daughter of the plaintiff to be taken to her husband's house for her residence and maintenance there. Indeed, the father's legal obligation to provide for his marriage daughter's residence and maintenance ceases immediately on her marriage' being validly solemnized. Indeed, it is no part of a marriage-contract under Mohamedan Law that the bride or the bride's father is to bear any expenses incurred by the bridegroom or his father in connection with the marriage solemnized at bride's house. In Abdul Nabi v. Ajmat Hussain, AIR 1935 Nag 123 it was observed that no religious ceremony of the intervention of any priest is necessary for a valid muslim marriage.
11. In the instant case, it is true, the suit was instituted after plaintiff's daughter repudiated the marriage and there was an action pending trial which her husband had commenced when plaintiff's suit was being tried. It is true, judicial consensus is lacking on the necessity of the minor wife's right of repudiation without Court's intervention. Sir Ameer Ali, J., speaking for the Court in Badal v. Queen (1892) ILR 19 Cal 79, has expressed the view that judicial order was not necessary to effect cancellation of the marriage and in the absence of consummation non-ratification shall be presumed. On the other hand, a learned single Judge of this Court has taken a different view in Pirmohammad v. State, AIR I960 MP 24 : (1960 Cri LJ 83) wherein it was held that mere exercise of the option of repudiation does not operate as a dissolution of the marriage. Two other learned Judges of this Court have separately preferred to follow the view expressed by Sir Ameer Ali and have held that the right of repudiation can be effectively exercised by the wife in her husband's suit for restitution of conjugal right. See, Batloon v. Zahoor Shah, AIR 1952 MB 30; Nizamuddin v. Huseni, AIR 1960 MP 212. It is not necessary, however, to express preference for one or the other view because subsequent exercise by minor-wife of her option of repudiation does not wash away husband's primal sin of abandoning his spouse as his legal duty to give her food and shelter arises immediately on solemnization of the marriage. She and her parents too can maintain action against her husband even after she repudiates the marriage or it is dissolved otherwise through Court because her parents' obligation towards her ceases with her marriage and on passing of that to her husband.
12. Trial Court has applied the principle of restitution in accepting plaintiff's claim for reimbursement of two sums of Rs.2,000/-and Rs. 27.000/- respectively. Although on that basis too the decree passed against defendant No. 1 is legally tenable the view I have taken make his son, defendant No. 2, equally liable with him. According to me, the Court below has erred in law in exonerating defendant No. 2 by taking a restricted view of the doctrine of restitution as reposited in S. 70, Contract Act. Payment of Rs. 2,000/-cashfor Gas-lights, Band etc. and the expenditure incurred for feeding the Barat was not without "consideration". That was evidently a non-gratuitous act, the benefit of which was enjoyed by both defendants. Both defendants were legally liable for those expenses because the plaintiff had no legal obligation towards them to incur that expenditure though "consideration" for that, evidently, was his daughter's marriage. Although immediate benefit was of defendant No. 1 as a result of the pecuniary gain accruing directly to him, the fulfilment of the purpose of the journey to plaintiff's house and of the barat being fed and entertain there till his marriage took place was the benefit gained by defendant No. 2. Plaintiff's act of payment of Rs. 2.000/- cash to defendant No. 1 and of his feeding the barat was, each, a lawful act done in connection with his daughter's marriage. S. 70 does not exclude cases of joint liability of joint beneficiaries who are jointly "enriched" in any way in an "unjust" manner at another's cost. Both defendants acted unjustly in consort in exploiting plaintiff's hospitality to his detriment. (See also, in this connection, Halsbury' Laws of England, Vol. 9, 4th Ed., paras 640-41).
13. For the reasons aforesaid the decree passed by the trial Court and in plaintiff's favour is affirmed. Indeed, for modification in the decree, there is no cross-objection. Otherwise, both father and son would have been made jointly liable.
14. The next question to be examined is, if the decree for damages in the sum of Rs.3,000/-, for defamation is sustainable in law. Appellant's counsel, Shri Lahoti, contended seriously that the claim in that regard was time-barred and pleaded Article 76 Limitation Act, 1963. Shri Kaushik, learned counsel appearing for the plaintiff-respondent, contended on the other hand, that the suit was governed by the residuary Article 113 and that it was within time, being filed within 3 years of the date of marriage. It cannot be disputed that Art. 76 applies to a tort of the specified category, namely, "libel or slander". In my view, therefore, it has no application to plaintiff's suit as the tort complained is not of that category. Plaintiff's action is evidently not founded on any spoken or written words of defamatory nature. The gist of the action, in the instant case, consists of act and conduct of the two defendants, the father and the son; the tort for which they are to be held liable is of a hybrid type.
15. Defamation consists of such acts of the tort-feasor, according to Black's Law Dictionary, as of "holding up of a person to ridicule, scorn or contempt in a respectable and considerable part of the community". To quote Salmond, "A man may defame another by his acts no less than by his word."(Law of Torts, 18th Ed., p. 130). It is true that Common Law categorisation of defamation is crystallized and "libel" is treated as that class of statement which is addressed to the eye; it is "slander" when it is addressed to the ear. It would certainly be defamation of a hybrid type if the acts of the tort-feasor are of such type that both eyes and ears are affected. Indeed, the gist of tort of defamation consists of such acts which are aimed at harming the reputation of the plaintiff. Halsbury speaks of the Common Law recognising from time to time new duties and new liabilities (4th Ed., p. 45, para 1202) to show to the Courts of Republican India their virgin field. Development of new specis of constitutional tort in recent times in our country is an encouraging trend. (See, Rudal Shah, AIR 1983 SC 1086 : (1983 Cri. LJ 1644); Sebastian Hongray, AIR 1984 SC 1026 : (1984 Cri LJ 830); Bhim Singh, AIR 1986 SC 494 : (1986 Cri LJ 192). In an action by the plaintiff claiming damages from defendants in respect of interference with her right to her husband's consortium it was held in Best v. Samuel Fox (1950) 2 All ER 798, that the novelty of the action was no bar to it provided that "it was only a new instance of a principle known to law and not new principle." Our Constitution uses the word "defamation" in Article 19(2) in a generic sense to be construed in the light the preamble-imperative, "dignity of the individual" being ensured to every citizen of the Republic. The abrasive conduct of the two defendants in dealing with plaintiff and his daughter, their vulgar exhibition of male-chauvinism of showing contemptuous disregard of lawful aspiration of the bride and her marriage-guardian in a manner that held them up to ridicule, as a result of their scornful abandonment of the bride after the marriage, in the full gaze of the respectable guests who had gathered there for a joyous and auspicious occasion, can be explained only by their intention to defame the father and his daughter.
16. If the motive of the two defendant's is properly analysed in respect of their acts and conducts, other aspects of their tortious character are easily discernible. For that judicial parallels may be examined. A case of intimidation tort is one of Rookes v. Barnard (1964) 1 All ER 367, holding an action maintainable for intimidation by a threat to a person other than the plaintiff to do an unlawful act, made with the intention of damnifying the plaintiff, whereby loss accrues to him. An action was held maintainable in another case, by the Privy Council, for loss or harm suffered as inevitable consequence of defendant's unlawful, intentional and positive act. (See, Dunlop v. Woollahra MC (1981) 1 All ER 1202). In the instant case, demand from the plaintiff money to be paid for the services of the nautch-girl employed by the defendants was evidently intimidatory. The threat was indeed carried out by the illegal act of abandoning the bride at the marriage-hall in full and complete violation of the injunction of the marriage law applicable to the parties. That act of both defendants was positive, intentional and also unlawful. It caused the plaintiff and her daughter loss of reputation. If the matter is looked at from constitutional angle, the wrong of the defendants emerge in a magnified form. They had challenged the "dignity of the women" in violation of their Fundamental Duty contemplated under Article 51 A(e) as they indulged in a practice which, in Indian society, is regarded as derogatory to women's dignity.
17. Viewing the matter from any angle, it is difficult to avoid the irresistible conclusion that the act and conduct of the two defendants was wrongful by which the plaintiff and her daughter were both harmed materially as also mentally. They lost reputation which in a civilised society is regarded as man's pride possession partaking the character of property right; plaintiff has directly suffered a continuing pecuniary loss being saddled with the burden of maintaining his marriage daughter as he could not allow her to starve for her default in taking legal action against her husband to claim maintenance cost from him. Most modern systems of jurisprudence, as observed by Paton, lay emphasis on father's duty to consider needs of the child and his being "forced (by law) to contribute to the upkeep of the child". (Text Book of Jurisprudence, 3rd Ed., p. 153). Principle 6 of United Nations Declaration of Rights of the Child, 1959 emphasises care and "responsibility of his parents" in regard to its "moral and material security."
18. For the records aforesaid, trial Court's decree awarding compensation in the sum of Rs.3,000/- to the plaintiff against defendant No. 1 for his tortious act is affirmed. There is no cross-objection either for enhancement of the quantum or for changing the character of the liability to make it a joint decree against defendant No. 2. As such, the decree is maintained in its present form and it stands unmodified.
19. In the result the appeal fails and is dismissed. Parties are left to bear their own costs in this Court, in the facts and circumstances of the case.