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Cites 2 docs
The Indian Contract Act, 1872
Gherulal Parakh vs Mahadeodas Maiya And Others on 26 March, 1959

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Gujarat High Court
Prema Korgaokar vs Mustak Ahmed on 3 October, 1986
Equivalent citations: AIR 1987 Guj 106, (1987) 1 GLR 462
Author: R Mehta
Bench: R Mankad, R Mehta



JUDGMENT
 

 R.A. Mehta, J. 

1. This appeal by the original-plaintiff is against the judgment and decree dismissing her suit for damages of Rs. One lac based on the ground of breach of promise of marriage.

2. The case of the appellant is that she is Goanese Brahmin coming from poor family. In 1978, she had started working as a part time typist in a typing institution Good luck Typing Centre in Santacruz (East) Bombay which was run by the respondent-defendant. The defendant was also working as a Stenotypist in Indian Oil Corporation at Bombay. The respondent-defendant developed friendly relations with the appellant-plaintiff. In 1980, the defendant was transferred from Bombay to Rajkot office of Indian Oil Corporation. The appellant-plaintiff accompanied the respondent-defendant to Rajkot on promise to find out a job for her. Relying on him, she came to Rajkot on 23-3-1981 and stayed with the respondent-defendant in Ashok Hotel for three days. The respondent-defendant being a Muslim, although married, stated to the appellant-plaintiff that his wife was unable to conceive and bear a child and, therefore, he had to adopt the child of his sister-in-law. But the respondent-defendant was very much desirous of having his own child and, therefore, the defendant who could have another wife under his personal law, proposed and promised to marry her and give her the status of wife. On such promise by the respondent-defendant and in expectation of married life, the appellant-plaintiff was induced to surrender herself to the respondent-defendant. The respondent-defendant also changed the name of the appellant-plaintiff from Prema Koregaonkar to Parvin Ahmad. The respondent-defendant took her to a building 'Rafik Manzil' from Ashok Hotel in Rajkot and thereafter, live with the appellant-plaintiff as husband and wife. However, when the appellant-plaintiff insisted on marriage, the respondent-defendant started harassing has and the appellant-plaintiff was put into a very awkward position. She was not even able to go to her relations. She had, therefore, sought help of the Social Security Branch of Rajkot police. Ultimately, she was deserted by the respondent at Rajkot a far away place from her relations. She submitted that she had lost everything in her life and all chances of happiness in life and of finding out a suitable life partner in her caste or society and that the respondent has ruined her by committing, breach of promise to marry her and she claimed compensation for the same amounting to Rs. One lac with interest at 18% from the date of the suit.

3. The respondent-defendant denied all the material averments of the appellant-plaintiff. He denied that they had stayed together for three days in Ashok Hotel at Rajkot. He denied that his wife was unable to conceive or that he wanted to have a child of his own. He denied that the appellant-plaintiff had surrendered herself in the respondent-defendant and that they had lived together in 'Rafik Manzil' and at various other places in Rajkot as husband and wife. It is submitted that the appellant had come to Rajkot and was residing in the family of the respondent-defendant as it friend and during the Course of the time, it was found that she was not of good moral character and she could not be kept with the cultured family of the respondent-defendant and ultimately she was asked to leave the house of the respondent-defendant and as a result she contacted the Social Security Branch of Rajkot police. It was denied that the respondent-defendant had any illicit relations with the appellant-plaintiff. It was submitted that as per the writing before the Social Security Branch of Rajkot police, the respondent-defendant was only liable to pay the maintenance for the period from 9-1-1982 till April, 1982 and, therefore, 'Novatio' was pleaded. It was also submitted that the suit was filed with a view to extort money from the respondent-defendant.

4. The learned trial Judge, after recording the evidence and considering the matter, dismissed the suit holding that the plaintiff had failed to prove that the defendant had given a promise and played fraud and misrepresentation regarding marriage. The trial Court also held that the defendant had failed to prove that the plaintiff was staying with the family of the defendant as his friend and also failed to prove that she was not of a good moral character and, therefore, she had to leave the house of the defendant, that the defendant also failed to prove that false allegations were made by the plaintiff to harass and blemish the defendant.

5. The learned counsel for the appellant submitted that the judgment of the trial Court is clearly contrary to the evidence on record and even contrary to its own findings. The learned counsel for the appellant has referred to para 5 of the Judgment wherein the learned trial Judge has observed as follows : -

"The defendant has denied every thing in his written statement. But in his evidence, he has admitted his photographs with the plaintiff. He also admitted that they have resided together as husband and wife and existence of illicit relation. But according to him, it all were without any promise on his part. It cannot be said true that she was staying with him as friend and subsequently, she was turned out to bad character and, therefore, she was made shelterless. They were in love with each other and, therefore, they were staying as friend of the defendant with him. There is no question of harassment or to blemish the defendant. It is admitted on the part of the defendant that they were staying as husband and wife in Ashok Hotel, in Sadhna Guest House, in the house of Mohmadbhai and in Mehta house at Rajkot."

6. The appellant has also relied on the following evidence.

i) Ex. 17, her own deposition.

ii) Ex. 20, hotel bill.

iii) Ex. 21, a telegram of the defendant from Bombay to the plaintiff that he was coming.

iv) Ex. 22, a joint photograph of the appellant and respondent.

v) Ex. 23, another joint photograph of the appellant and respondent with adopted son of the appellant.

vi) Ex. 24, a letter dated 22-6-1981 from Bombay purported to have been signed by the defendant and addressed 'My darling' and produced by the appellant. In that letter, the respondent has stated that he has extended his leave for a week and he would be coming to Rajkot by next Sunday and at present he did not have money and would pay the rent after coming there. This letter is proved by the evidence of the plaintiff and there is no cross-examination on this point by the defendant. Even in his examination-in-chief, he has not even said a word of denial. In that view of the matter, there is no reason to doubt that the defendant had written this letter to the plaintiff.

vii) Ex. 25 is the medical prescription of Dr. Nalini M. Desai and the name of the patient is mentioned as Mrs. Parvin Ahmad. In that prescription, there is one significant remark "heavy and frequent i.e. for 2 days (purposely by husband according to the patient). This is also proved by the evidence of appellant Ex. 17. The Doctor herself could not be examined as she had left India and was not available for giving evidence in the Court.

viii) Ex. 26 is the certified copy of the writing before Social Security Officer. In that application, she had stated that the respondent was after her since last 3 years and pressing for marriage. However, she had been delaying the proposal and when she accepted the proposal and agreed for marriage, the respondent played some drama and called his wife from Bombay.

ix) Ex. 34 Ramniklal is the neighbor and landlord of house 'Mehta Nivas' who has deposed that the appellant and the respondent lived as husband and wife in the house for about two months.

x) Ex. 35 is the Photographer who has proved tile photograph Exs. 22 and 23 and also proved the negatives Exs. 36 and 37. He has also produced the bill for the same. He has stated that the respondent had come for the photograph.

xi) Ex. 39, Shivlal is the Accountant of Sadhana Hotel who has proved the entry of 2-5-1981 of two persons, and the witness has stated that Ahmad was accompanied by one lady and both of them were staying alone and he had not enquired about their relations. That part has come out in the cross-examination of the witness.

xii) Ex. 41 is the Manager of Ashok Hotel who has proved the hotel entry at Ex. 42 which is in the name of Ahmad M. Indian Oil Corporation from Bombay with family and total member of persons being two. In the cross-examination the witness has stated that if the Hotel Management comes to know that the man and woman do not have the relations of husband and wife, they would not give accommodation to such persons. He had not thought that plaintiff and defendant were not husband and wife.

The appellant-plaintiff has also relied on the falsity of the written statement and the two line examination-in-chief of the respondent-with a view to corroborate her case of promise to marry and breach of such promise of marriage. The respondent-defendant in his evidence at Ex. 63 has stated in all only two lines in his examination-in-chief which read as follows : -

"I know the plaintiff. I had not promised to marry her. There is no sexual intercourse with her by me without her consent."

This is all he had said in his examination-in-chief. He has not denied on oath several circumstances and the evidence of promise of marriage led. by the appellant-plaintiff. As far as the promise of marriage is concerned, only the parties would have personal knowledge. The appellant-plaintiff has stated on oath that the respondent-defendant had given the promise of marriage and the respondent-defendant has denied it. There is word against word. However, there are several important circumstances which lend credence and support to the word of the appellant plaintiff, and the respondent has utterly failed to explain these circumstances appearing against him and to show any circumstance in support of his say. He has not examined any witness in his defence. He has not examined even his close friends with whom he had lived with the appellant-plaintiff. Ex. 24, a letter addressed to the appellant-plaintiff as 'My darling' is a strong circumstance to show that what the appellant-plaintiff says is true. There is no cross-examination of the appellant regarding this letter. There is no attempt by the respondent to explain and deny this letter in his examination-in-chief. The Photographs Exs. 22 and 23 also show that the appellant plaintiff and the respondent-defendant appearing in these photographs are appearing as a couple and members of family. The medical prescription Ex. 25 by Dr. Nalini Desai wherein the name of the patient is shown as Mrs. Parvin Ahmad clearly clinches the issue. At that time, there was no reason to give a false name unless the appellant-plaintiff and the respondent-defendant had been living as a husband and wife and the appellant plaintiff was living under that name. This circumstance very strongly corroborates the say of the appellant that there was the promise to marry and, therefore, they were living as husband and wife and describing themselves as such. Even the independent witness like landlord and neighbour Ex. 34 who has seen the two living together for three months in his house has also stated that they were living as husband and wife. In the cross-examination, the respondent has admitted that he stayed with her as she insisted to stay in the hotel and they had stayed together for two days. He has also admitted that he stayed with her at Rajkot for about 5 to 6 days. Regarding the photographs, the respondent had to say in the cross-examination that they had gone to the photographer because of her insistence. The averment in the written statement that the respondent became. aware of the bad character of the appellant and, therefore, he thought that it was unbecoming of the cultured family of the respondent-defendant. However, nothing whatsoever has been shown as to what was that bad character except that she had submitted herself fully to him. If that was the bad character, that equally applied to himself. She had submitted herself on the promise of marriage. However, it appears that so far as the respondent-defendant is concerned, he had exploited her by the false promise of marriage. If there is anything bad in either of them, it is in !the character of the respondent-defendant rather than that of the appellant-plaintiff. It appears that this false excuse of bad character of the appellant as against the "cultured" family of the respondent has been merely given to get away from the promise of marriage.

7. The learned counsel for the respondent Mrs. Chinubhai has strongly submitted that there was no promise to marry and it was a voluntary and free relationship between the two; the respondent was already married and the close intimacy between a man and woman does not necessarily mean promise of marriage. If there was merely word against word, such argument may have some force. But having regard to the circumstances mentioned above, the word of the appellant-plaintiff seems to be more probable, natural and acceptable as against the word of the respondent-defendant which is less probable and absolutely unacceptable. Mrs. Chinubhai submitted that so far as so-called promise to marry is concerned, there is no evidence except bare word of the appellant-plaintiff who is highly interested in making false allegations and it is clearly an attempt to extort money and her evidence cannot be taken at its face value. If it was a matter of her word only, this contention would have some merit. But her word is supported by many circumstances. She has submitted that the photographs do not prove any promise of marriage nor does the letter Ex. 24. The photographs and the letter merely show that the two were having some intimate relations and nothing more and certainly no promise of marriage. It is true that promise cannot be photographed. But the photographs and the letters are the circumstances which do support the case of one or the other. Mrs. Chinubhai has also referred to Ex. 24, complaint of the appellant-plaintiff to the Social Security Branch wherein she has stated that she herself did not want to marry; even then he had insisted for marriage and when she became ready for the marriage, he called his wife and raised quarrel and submitted that even if it is assumed that there was some promise of marriage, there was no breach of that promise by the respondent-defendant. It is not possible to accept this contention also because one has to look to the entire conduct for all the time. It is clear that there was not only a promise, but a continuing understanding between the two that they would get married and only the timing of the marriage was to be agreed and fixed and ultimately when she insisted for the marriage, the respondent-defendant went back on his promise and committed breach of the promise. Mrs. Chinubhai has also submitted that if really she had a promise of marriage, she would have certainly talked to some friend or relative. However, she has not examined anyone. It is to be noted that she is a Brahmin girl from Goa and the appellant-plaintiff and the respondent-defendant are in Rajkot. The respondent is already married and Muslim, belonging to totally a different religion. In such circumstances, it would be natural that she would not inform any of the relatives or friends. It is not shown that she had any friend or relative in Rajkot. Where they were living were the friends of the respondent and not of the appellant. Really speaking, this argument should apply to the respondent who has examined no witness on his behalf. He has not examined his own wife who had visited the place twice. He has not examined any friend with whom they were living. In the cross-examination of the appellant, it was suggested to her by the respondent-defendant that she was not ready to marry with the respondent before he takes divorce from his wife. She has denied this suggestion. But this suggestion clearly implies that the respondent wanted to marry the appellant-plaintiff without getting divorce from his first wife.

8. In view of the above discussion, the finding of the lower Court that there was no promise of marriage cannot be sustained has to be reversed. The learned trial Judge has observed that :

"considering the whole evidence and its cumulative effect, I am of a view that parties were in love since long with each other and she surrendered (to) the defendant for that reason only and not of the so-called promise as stated by her."

xxxx "no doubt they remained as husband and wife, but only for that reason, in the instant case, it cannot be said that she surrendered herself due to the promise."

xxxxx "Their, love affairs ended into bodily happiness. Mere residing as husband and wife for some period cannot establish that she only surrendered herself to the defendant as she was promised by the defendant to marry her. Circumstance shows that they were in love since long but when they got opportunity to live together, both have taken it. Before surrendering herself, she could have insisted to perform the marriage first. That she had not done. Therefore, I am of a view that the facts regarding promise to marry her is subsequently got up fact for the institution of this suit."

Such conclusion of "no promise to marry" cannot be sustained and is contrary to evidence

9. Therefore, there is no escape from the conclusion that the respondent-defendant had promised to marry the plaintiff. On that finding, there is no further dispute that if there is such promise, the respondent has committed breach thereof. Even otherwise, there is clear evidence to show that the respondent-defendant has not been willing to keep and fulfil his promise.

10. The next question that arises is whether the appellant-plaintiff is entitled to any damages or compensation and if yes, how much. On this question, we had requested the learned Advocate Mr. M. D. Pandya to render his assistance as amicus curiae and we have heard him also.

11. The learned counsel for the respondent-defendant has submitted that award of compensation in such a case would be against the public policy and morality. If a woman lives in illicit cohabitation with a man and thereafter comes out with a case of damages, such claim would not be countenanced by any Court of Law and justice and, therefore, the Court should refuse any compensation. She has relied on the decision in the case of Gherulal Parakh v. Mahadeodas Maiya, AIR 1959 SC 781 wherein the Supreme Court has observed as follows:-

"The primary duty of a Court of Law is to enforce a promise which the parties have made and to uphold the sanctity of contracts which form the basis of society, but in certain cases, the Court may relieve them of their duty on a rule founded on public policy; the doctrine of public policy is extended not only to harmful cases but also to harmful tendencies."

Relying on the aforesaid decision, the learned counsel for the respondent has submitted that if the Court were to award damages in the present case, it would be harmful and it would encourage harmful tendencies and it would be against public policies. In support of this contention, the learned Counsel for the respondent has also relied upon a judgment in the case of Istak Kamu Musalman v. Ranchod Zipru Bhate, AIR 1947 Bom 198 wherein it was held that if the consideration is immoral, transaction is void.

12. In the case of Manicka Gounder v. Muniammal, AIR 1968 Mad 392 which is strongly relied upon by the respondent, it is observed as under : -

"Where due consideration relates strictly to past cohabitation, which is illicit, in the sense that it is outside matrimony, but which otherwise does not constitute any offence, it would be conceivably held, on the circumstances, that the promise to pay is supported by good consideration. But even so, though this consideration is not forbidden by any law, nevertheless it falls under the interdict that it may be 'immoral or opposed to public policy'. For the Courts must, by every means in their power, promote matrimony, and the incurring of lawful sexual relationship alone and ought not to give sanction or approval, even in an implied form, to irregular sexual relations outside the bond of matrimony, even where they may constitute no offence of infringement of the Penal law."

13. None of these cases would be applicable in the present case. It is true that there was cohabitation between the parties and it was illicit cohabitation without matrimony. However, the damages are not claimed on the basis of illicit cohabitation or for any immoral consideration. It is only a side effect or a by-product and the cause of action is not based on such cohabitation.

The case is based on the promise of marriage and breach of such promise. If the appellant-plaintiff proves that case, a clear actionable wrong is proved for which claim for damages or compensation is maintainable. Merely because the parties had also illicit cohabitation would not make the legal and valid cause of action illegal and immoral. It is a well settle law that breach of promise to marry is actionable and damages and compensation for such breach can be awarded.

14. The case of Maung Sein Kyi v. Maung Sein Kyi, AIR 1916 Lower Burma 45 is a case of breach of promise of marriage and damages in such case and it was held as follows : -

"Under S. 74 of the Contract Act, it is open to the Court to award such compensation not exceeding the amount so named as appears to it to be reasonable. The defendant urges that Rs. 2000/- is an excessive amount to award against a person in his position of a clerk on Rs.75 a month. As he is insolvent it appears to me improbable that the plaintiff would realize any considerable sum from the defendant himself but as pointed out, his step father holds a well paid Government appointment and the defendant's position does not alone justify a reduction of the damages. He has treated the plaintiff in a shameful and hard-hearted manner and if, as was stated in this Court and not denied, he has since married another girl, he has put it out of his power to make even tardy amends to the plaintiff by offering her the status of a chief wife. On the other hand, Rs. 2000/- is a handsome sum to a girl in the plaintiffs position and is, I consider, a reasonable compensation under the circumstances."

15. In Anson's Law Contract, it is observed as follows under the head 'Compensatory Nature of Damages' in Chapter 17 of 'Remedies for Breach of Contract', "damages for breach of contract are given by way of compensation for suffered, and not by way of punishment for wrong inflicted. Hence the 'vindictive' or "exemplary' damages of the law of tort have no place in the law of contract. To this rule, however, the action for breach of promise of marriage is an exception; in that case injury to the feelings of the disappointed party may be taken into account in the assessment of damages."

16. This is the well settled common law in England which applies in India also. Thus, the breach of promise of marriage is not only actionable and there is no bar of public policy operating against the same but even exemplary damages apart from the normal damages would be awarded.

17. In the case of Jarvis v. Swans Tours Ltd., (1973) 1 QB 233, the Court of Appeal held that the plaintiff is entitled to compensation for his disappointment and distress at the loss of the entertainment and facilities for enjoyment which he had been promised in the defendant's brochure and his damages should be increased to 125. In that case, the charges for the fortnight holiday were 63.45 and it was proved that he did not get the promised facilities, entertainment and enjoyment and had inconvenience and loss of benefit. It was found that in the first week, he got a holiday which was inferior and for the second week, a holiday he got was very largely inferior to what he had been led to expect. The Court at the first instance took the difference in value between what he paid for and what he got and it was thought that the plaintiff had got half of what he had paid for and so the trial Court gave him half the amount which he had paid namely 131.72. The Court of Appeal enhanced the damaged to 125 and negatived the argument that on a breach of contract, damages cannot be given for mental distress and that damages cannot be given for disappointment of mind occasioned by breach of contract. Lord Denning observed as follows : -

"I think that those limitations are out of date. In a proper case damages for mental distress can be recovered in contract, just as damages for shock can be recovered in tort. One such case is a contract for a holiday, or any other contract to provide entertainment and enjoyment. If the contracting party breaks his contract, damages can be given for the disappointment, the distress the upset and frustration caused by the breach. I know that, it is difficult to assess in terms of money, but it is no more difficult than the assessment which the Courts have to make every day in personal injury cases for loss of amenities."

18. What is said to be applicable in a case of breach of promise of a happy holiday would must strongly and appropriately apply in the case of breach of promise of marriage and happy family life.

19. The next question that arises is about the quantum of damages to be awarded. In a case of this nature, there is no ready measure of damages unlike commercial contracts. There could be several relevant circumstances to be taken into account. Such as social and financial position of the parties (even though inability to pay damages may not result into denial or dimination of damages if otherwise the plaintiff is entitled to larger quantum of damages). The respondent-defendant is working as a Stenographer in a well reputed public sector corporation like Indian Oil Corporation. If the promise had been fulfilled, the appellant-plaintiff would have shared his life as a family member and would have enjoyed all the facilities of the family life including the earnings of the husband. In the event of desertion by the husband, she would be entitled to maintenance commensurate with the social and economic status of the husband and wife. In the present case, it would not have been less than Rs. 500/- per month. It would probably be somewhere between Rs. 750/- and Rs. 1000/-per month. Another measure, is suggested, to compare with the case where a wife loses her husband in a fatal motor accident and to come to annual loss and apply a multiplier of 15 to arrive at a lump sum figure. Even if a conservative amount of Rs. 500/- per month is taken as a datum figure in this case, that would be Rs. 6000/- per year. If a multiplier of 10 is applied, it would be Rs. 60,000/-. Such amount would give a reasonable maintenance per month for lifetime. That would also take care of all the aspects of damages including compensatory, aggravated or exemplary damages.

20. In a case decided 70 years ago, reported in AIR 1916 Lower Burma 45 (supra) an amount of Rs. 2000/- was awarded against a person in a position of Clerk earning Rs. 75/- per month. Having regard to the comparative money value of Rs. 2000/- in 1916 and Rs. 60,000/- in 1986, it appears, that the damages can reasonably be assessed in the present case at Rs. 60,000/-. The appellant plaintiff will also be entitled to interest at the rate of 6% per annum from the date of the suit till realisation. The appellant-plaintiff would also be entitled to costs of both the Courts.

21. In the result, the appeal succeeds. The judgment and decree of the trial Court are quashed and set aside and the suit of the appellant-plaintiff is decreed and it is directed that the respondent-defendant do pay to the appellant-plaintiff a sum of Rs. 60,000/- with 6% interest per annum from the date of the suit till realisation and also the costs of both the Courts.

22. We put on record our appreciation of Mr. M. D. Pandya for having assisted the Court as amicus curiae at the request of the Court. His assistance was disinterested and useful and was sought on the question whether damages could be awarded in a case like the present one and what would be the measure for such damages.

23. Appeal allowed.