Customs And Customary Law In British India
None can be certain about the outcome of law cases except the time and expense involved in pursuing the course of justice. What is then law? Quoting from Austin?s JURISPRUDENCE (Vol. 1), the author says: A law is a ?command of a particular kind. It is addressed by political superiors or sovereigns to political inferiors of subjects; it imposes on those subjects as obligation or duty and threatens a penalty (or sanction) in the event of disobedience.? In the prevent times, marriage and divorce have been fruitful source of litigation between the contracting parties. The author quotes a case which came up before Calcutta High Court where one of the learned judges after very careful consideration and after a review of the prevailing judicial pronouncements deducted the following rules which will be found interesting by legal Pandits even today. An agreement to remunerate or reward a third person in consideration of negotiating a marriage is contrary to public policy and cannot be enforced. An agreement to pay money to the parents or guardian of a bride or bridegroom, in consideration of their consent to the betrothal, is not necessarily immoral or opposed to public policy. Where the parents of the bride are not seeking her welfare, but give her to a husband otherwise ineligible, in consideration of a benefit secured to themselves,the agreement by which such benefit is secured is opposed to public and ought not to be enforced. Where an agreement to pay money to the parents or guardian of a bride or bridegroom. In consideration of their consent to the betrothal, is under the circumstances of the case neither immoral nor opposed to public policy. It will be enforced, and damages also will be awarded for breach of it. A suit will lie to recover the value of ornaments or presents given to an intended bride or bridegroom in the event of the marriage contract being broken. Although a Court may not enforce an agreement to pay money to the parents or guardian of an intended bride or bridegroom on the ground that the agreement is opposed to the public policy yet a suit is maintainable for the recovery of any sum actually paid, pursuant to the agreement, if the contract is broken and the marriage does not take place. If one of the contracting parties alleges that the agreement is opposed to public policy, it is for him to set out and prove those special circumstances which will invalidate the contract. To study the social, legal and religious customs and usages and their practice by the followers of all Indian religions more than 100 year ago, and to compare and contrast them with the present day laws and usages in indeed a rewarding experience. A unique work of this kind should be a must for all libraries and for all practitioners of law in India and abroad.
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