Kamalakshi vs Ramasami Chetti

Subramania Ayyar, JJ.—The first question raised in this case is whether the presentation of the plaint and the prosecution of the suit by the

plaintiff (appellant) when she was yet a minor and without the aid of a next friend were void or were mere irregularities which the defendants had

by their conduct waived.

In the recent case of Doorga Mohun Dass v. Tahir Ally ILR 22 Cal. 274 Sale, J. said: ""The reason why no proceeding can be taken by an infant

without the assistance of a next friend is, as stated in Daniell''s Chancery Practice, 6th Edition, p. 105, ''on account of an infant''s supposed want of

discretion, and his inability to bind himself and make himself liable for costs.'' And it would seem that the rule was intended for the protection and

benefit of defendants, for it has been held that when a defendant waives this benefit and protection, the suit may proceed without a next friend."" In

ex parte Brocklebank L.R. 6 Ch. D. 358 cited by the learned Judge in support of his opinion, all the Judges proceeded upon the view that an

infant to whom a debt was due had a right to enforce the payment of it by means of a debtor''s summons and proceedings in bankruptcy based

thereon, and that the infant having sued out the writ in the action in his own name without a next friend, was an irregularity which was waived by the

conduct of the defendant. There is authority, therefore, for holding that the contention of the defendants (respondents) that the proceedings in the

present case were altogether void cannot be supported. It was no doubt open to the defendants to apply u/s 4421 Civil Procedure Code,, to have

the plaint taken off the file, as it appeared on the face of the plaint itself that the plaintiff was a minor at the date of its presentation. They not only

omitted to do so, but throughout the trial raised no question on the point. And when the District Munsif passed a decree against them, they

preferred an appeal against it to the District Court making the plaintiff respondent, without getting a guardian ad litem appointed as if she were not

a minor, even though '' at the time the appeal was preferred she was still under the age of 18. It is now too late for the defendants to object to the

irregularities they complain of.

The next question for decision is whether the plaintiff is entitled to the relief claimed by her, viz., that the defendants be directed to permit her to

undergo the pottu-tying ceremony in the temple in accordance with the usage of the institution. The District Munsif held that she was entitled to the

relief. The District Judge, being of opinion, as I understand him, that the grant of such relief would be opposed to public policy as one tending to

promote immorality, disagreed with the District Munsif and rejected the claim.

Now as to the ceremony itself, it seems to be quite simple in its nature. As its very name denotes, the material portion of it consists of nothing

more than tying within the precincts of the temple a circular piece of gold to the neck of the girl to be admitted as a temple dancer. See the

judgment of the Sessions Judge in Regina v. Arunachellam ILR 1 Mad. 165 a case connected with this same temple. So far, therefore, as the

performance of the ceremony itself goes, there is nothing immoral in it. The District Judge''s view probably rests upon the notorious fact that

women who are temple dancers generally lead the life of prostitutes. That, however, in no Way proves the existence of any true connexion

between the tying of the pottu and the immoral lives of those who undergo the ceremony. And it is scarcely necessary to say that, neither in theory

nor in practice, is the dedication to the temple looked upon as essential to a woman of the dancing-girl caste becoming a prostitute. But, on the

other hand, there is an immediate and clear connexion between the ceremony in question and the mirasi office of dancer claimed by the plaintiff,

inasmuch as the former is a necessary preliminary to her entering upon the duties of that office and to her enjoying the emoluments attached thereto.

It is quite true that in Ex parte Padmavati 5 M.H.C.R. 415 and in Regina v. Arunachellam ILR 1 Mad. 165 already referred to, tying of pottu was

one of the circumstances relied upon by the prosecution against the accused. But that was, of course, not for the purpose of establishing that the

ceremony by itself amounted to an offence, but to throw light on the intention of the accused as to the course of life to which the minors were to be

trained. The argument was, the ceremony made the girls temple dancers; temple dancers usually became prostitutes; hence the object of the

accused in obtaining possession of the girls was to train them up to a life of prostitution. It seems to me therefore that the said cases are not in

conflict with the proposition that no true relation exists between the ceremony and the immoral life of the dancers. Consequently, if the defendants

without lawful excuse refuse to allow the plaintiff to undergo the customary ceremony said to be a pre-requisite to her entering upon the duties of

her mirasi office, she is certainly entitled to redress. And I consider that we, sitting here as Judges, are not at liberty to upset any decisions

admitting the right of members of the dancing-girl caste to remedy for violation of their civil rights, on the alleged ground that a change has taken

place in the sentiments of the large mass of the Hindu community in regard to the propriety of recognizing the usages of the said caste. As observed

by Lord Campbell, L.C. in Brook v. Brook 9 H.L.C. 209 ""change of opinion on any great question may be a good reason for the Legislature

changing the law, but can be no reason for Judges to vary their interpretation of the law.

In connection with the objection that the plaintiff is not entitled to the relief claimed, we were referred to Johnson v. Shrewsbury and Birmingham

Railway Co. 3 De Gex M. & G. 924 where Lord Justice Knight Bruce, when dealing with the question of specific performance of agreements for

personal service, said that before the Court can act in the exercise of its peculiar jurisdiction to enforce specific performance of an agreement, it

must be satisfied that the agreement is one ascribable to a class in which the Court has been accustomed or has certainly jurisdiction to interfere.

This observation is no doubt equally applicable to a case like this where specific relief of a somewhat novel description is claimed. But, as pointed

out by the Lord Justice himself in the same case later on, the demand may be new specifically without being new in kind or in principle. And in my

view the novelty of the relief sought hero belongs to the former class and not to the latter. In support of this opinion I may, without in the slightest

degree intending to suggest any invidious comparison between the menial office of a temple dancer and the dignified position of a mahant or head

of a mutt, refer to Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran ILR 10 Mad. 508 where the learned Chief Justice and

Muttusami Ayyar, J., ordered the Subordinate Judge to direct the Pandara Sannadhi of Dharmapuram to invest the Tambiran who may be

appointed as the head of the Tirupanandal mutt ""with arukattu, sundara-vedam (certain ear ornaments) and cloth as usual.

For the reasons stated above I come to the conclusion that the objection raised by the defendant to the relief prayed for on the score of

immorality or novelty cannot be sustained, and that the plaintiff is entitled to the decree prayed for, if her claim is in other respects good.

This leads me to consider the next and the most important question in the case, viz., whether the adoption of the plaintiff by Minammal, another

female, is valid or invalid. The District Munsif dealt with this question very briefly, contenting, himself with the single observation. ''It is perfectly

valid, such adoptions being recognized by law."" The District Judge, being of opinion that the suit failed on another ground, expressed no opinion on

this point. The defendant''s contention, that the adoption is invalid, appears to be based on the following allegations. At the date of the adoption the

plaintiff was a minor under the age of 16, the adoptive mother was a dancing woman attached to the temple and was leading an immoral life like

other women of her class. She took the plaintiff in adoption with the intention of dedicating her to the temple iu the customary manner and devoting

her to prostitution even before the completion of her 16th year. And they argue that the party who gave and the party who received the plaintiff in

adoption under such circumstances committed an offence punishable under the Indian Penal Code, which had come into force at the time, and

consequently the plaintiff acquired no legal status or rights by such a violation of the public law of the country.

Now, upon these allegations, two legal questions arise for consideration. The first is, assuming the defendant''s above allegations to be true, was

an offence committed under the said section of the Penal Code? And the second is, if an offence was so committed, could and did such a

transaction confer on the plaintiff the status of an adopted daughter and the rights claimed by her as incident to such status?

As to the first question in Queen-Empress v. Bamanna ILR 12 Mad. 273 Parker, J. was of opinion that if a dancing woman, who was herself a

prostitute, took a minor girl in adoption with the intention of training up the latter to follow the same course of life as herself, an offence u/s 3732

would have been complete, even though the age of the adopted child prevented her immediate, prostitution and allowed time for repentance, and

even though one of the purposes of the adoption was that the child should inherit the property of the person adopting. Muttusami Ayyar, J., said

that if, in making the adoption, the intention was that the girl should be employed as a prostitute whilst she continues to be a minor, the accused

might be liable. Upon the views thus expressed it follows that the party who gave and Minammal who took the plaintiff in adoption were guilty of

an offence under the provisions of the criminal law relied upon by the defendants, if the act complained of was committed under the circumstances

alleged by them, notwithstanding that the act was called an adoption, which is ordinarily not a crime.

Upon the next question whether such an adoption entitles the plaintiff to claim through the said Minammal the office of dancing in the temple,

which office is said to vest hereditarily in the family of Minammal, I have not been able to find any direct Indian decision; nor have we been

referred to any such authority. In Ex parte Padmavati 5 M.H.C.R. 415 Holloway and Innes, JJ., observed, ""the fact of a transaction being in

violation of public law may prevent the arising of rights which would otherwise have the sanction of private law."" This, however, was an incidental

observation, and the point which I am now considering did not actually arise for decision there, I have therefore to deal with the question on

principle. And there can be no doubt that the principle applicable to such cases is that laid down in the following words in a recent decision relating

to an illegal agreement concerning property. ""The general rule is that no rights can spring from or be rested upon an act in the performance of which

a criminal penalty is incurred."" Younghusband v. Birmingham, T.S. Co. 36 American State Reports, 248 a rule no doubt subject to certain

exceptions, none of which, however, so far as I am aware, is relevant for our present purpose. I have not been able to find any case in which this

principle was acted upon in respect of a transaction touching personal status entered into in contravention of law. But I fail to see any valid reason

why the rule should not be applicable to such transactions also; when even such violations of private law known as unlawful agreements are

rendered unactionable, it is difficult to understand how violations of public law known as crimes are to be treated differently. The object of the

Legislature in preventing Civil Courts from entertaining suits in the former class of cases can only be to discourage as much as possible such

transgressions. And, as it would be absurd to suppose that the Legislature is less anxious to repress crimes, it would be unreasonable to hold that

the prohibition against a civil suit exists in the former case only and not in the latter also. It seems to me, therefore, that if a woman who makes an

adoption under circumstances which render the adoption an offence u/s 373, sues to enforce rights alleged to have been created in her favour by

that adoption, it would be impossible, consistently with established legal principles, to allow such a suit to be maintained. The reason for disallowing

such a suit, borrowing the language of Johnson, J., who delivered the judgment of the Supreme Court of the United States in Bank of the United

States v. Owen 2 Peters 539 is ""no Court of justice can in its nature be made the handmaid of iniquity. Courts are instituted to carry into effect the

laws of a country; how can they, then, become auxiliary to the consummation of the violations of law?"" On behalf of the plaintiff it was however

argued that as she herself did not commit any crime, she must be taken to stand on a different footing from that occupied by the guilty parties and

that as she is willing to accept her changed situation, it would be but adding to the injury already sustained by her to refuse to recognize her claim to

the office and rights of Minammal who was responsible for the plaintiff''s present condition. Whether, if the question arises between the plaintiff and

those who did her the injury, the doctrine of estoppel may be invoked in her favour, as it has sometimes been in the case of invalid adoptions under

the ordinary Hindu law, is a matter on which it is not necessary to express any opinion now. For, the defendants here are the managers of the

temple, who had nothing to do with the transaction which the plaintiff wishes to take advantage of, and as against such persons how can the plaintiff

rely upon a plea of estoppel? Her present claim must therefore stand or fall by the validity or invalidity of the adoption set up. And it is not possible

to hold, in a suit instituted by her, that to be valid which must be treated as invalid in a suit if instituted by Minammal, as has been already shown. In

this connection an observation of Searle, C.J. in Mill and Lumber Co. v. Hayes 9 American State Reports 212 though made in respect of an illegal

agreement in restraint of trade, is quite in point. He said, ""The illegality vitiates the contract between the immediate parties as well as in respect to

third parties."" The reason for this is plain. For whilst in cases of fraud and mistake the wrong is usually personal to the injured party and can be

waived, it is different in cases of illegality. In these the wrong is far-reaching and is done to society. Consequently, in such cases the interests of

individuals mast be subservient to public welfare McNamara v. Gargett 13 American State Reports 361. I cannot, therefore, help arriving at the

conclusion that the plaintiff''s adoption is a nullity if it took place under the circumstances stated by the defendants and the plaintiff is not entitled to

maintain her claim based as it is upon such an illegal transaction.

It thus becomes necessary to ascertain whether the adoption was made as alleged by the defendants. That it took place after the Penal Code

came into force, that Minammal who took her in adoption was a temple dancer living by prostitution, and that the plaintiff was at the date of the

adoption a minor under the age of 16 are, I understand, not questioned. But whether in making the adoption the intention of Minammal was as

asserted by the defendants, is a point on which there is no distinct admission, though the attempt which it is probable was made before the plaintiff

completed her sixteenth year to get her registered as a temple dancer is important evidence that the original intention was to prostitute her even

when she was a minor. But whether it was so or not is a question of fact upon which it is not open to us to express any opinion on second appeal.

The District Judge has not, as already stated, given any finding on the matter, and I would therefore call for a finding from him upon the seventh

issue in the light of the observations of Muttusami Ayyar and Parker, JJ. in Queen-Empress v. Ramanna ILR 12 Mad. 273 already quoted. See

also the observations of Banerjee and Sale, JJ. in Deputy Legal Remembrancer v. Karuna Baistobi ILR 22 Cal. 164. If the finding on this question

is in favour of the plaintiff, the District Judge should also be asked to submit findings on issues 3, 4 and 5.

The finding is to be returned within six weeks after the receipt of this order and seven days will be allowed for filing objections after the finding

has been posted up in this Court.

Best, J.

The suit is by a woman of the dancing-girl caste for a decree directing the trustees of a temple in Madura to cause to be tied to her the pottu or

thali without which she cannot be allowed to dance in the temple or to enjoy the emoluments attached to the office of dancer. Plaintiff claims to be

entitled to the office and emoluments as adopted daughter of one Minammal who died in 1879.

The District Munsif gave a decree as prayed, but that decree was reversed on appeal by the District Judge on the ground that the suit is not

maintainable, as the private right claimed by the plaintiff cannot arise except by transgression of a precept of public law. Hence this appeal by the

plaintiff.

The public law here referred to by the Judge is contained in Section 372 of the Indian Penal Code, which makes punishable the disposing of

girls for the purposes of prostitution; and the tying of pottu to a girl under 16 years of age and enrolling her as a dancing girl in a temple has been

held to be such a disposal of her and therefore an offence punishable under the section above, referred to. Plaintiff, however, is not under the age

of 16 years. She expressly states in her plaint that the delay hitherto in getting the pottu tied was owing to the fear that it would be criminal, but that

haying come of age on the 1st August 1891 this suit was instituted (in October 1891).

It is contended before us on behalf of the respondent that the Courts cannot recognize an institution such as that of dancing girls, the object of,

which is prostitution and the gain to be derived from that source. Chinna. Ummayi v. Tegarai Chetti ILR 1 Mad. 168 no doubt goes to this extent,

and. to the same effect are also the dicta of West, J. in Mathura Naihin v. Esu Naikin ILR 4 Bom. 545. But the opinions of West, J. on the subject

in the latter case were dissented from by Muttusami Ayyar and Parker, JJ. in Venku v. Mahalinga ILR 11 Mad. 393 and as remarked by

Muttusami Ayyar, J. ""they were not necessary for the decision of that case."" And it is open to question whether Chinna Ummayi v. Tegarai Chetti

ILR I Mad. 168 has not been overruled by a subsequent decision reported in the same volume Kamalam v. Sadagopa Sami ILR 1 Mad. 356. No

doubt the latter case was sought to be distinguished from the former on the ground of its including a claim for honours and income as appurtenant

to the hereditary office of dancing girl which plaintiff was seeking to recover; but, as observed by Mottusami Ayyar, J. in Venku v. Mahalinga ILR

11 Mad. 393 ""it is not clear how, if the custom which is the source of the hereditary right to the office is an immoral custom, the existence of an

endowment or emolument makes a difference and removes the legal taint in the Source of the right."",

Both in Venku v. Mahalinga ILR 11 Mad. 393 and in Muttukannu v. Paramasami ILR 12 Mad. 214 it was held that adoptions by dancing girls

I must be recognized by the Courts, on the ground that the class of dancing women ""being recognized by Hindu law as a separate class having a

legal status, the usage of that class, in the absence of positive legislation to the contrary, regulates rights of status and of inheritance, adoption and

survivorship."" But the adoption in question in both those cases took place prior to the coming into force of the Indian Penal Code.

There is also the judgment of SIR Charles Sargent, C.J. and Candy, J. in Tara Naikin v. Nana Lakshman ILR 14 Bom. 90 in which occurs the

following passage: ""The existence of dancing girls in connexion, with temples is according to the ancient established usage of the country, and this

Court would, in our opinion, be taking far too much upon itself, to say that it is so opposed to ""the legal consciousness"" of the community at the

present day as to justify the Court in refusing to recognize, existing endowments in connexion with such an institution.

As observed by Muttusami Ayyar, J. in Queen-Empress v. Ramanna ILR 12 Mad. 273 the giving and accepting of a minor for adoption by, a

dancing woman is not necessarily a criminal act, and is, punishable as an, offence under Sections 372 and 373 of the Penal Code only if the

specific intent which makes the act criminal is established, by cogent evidence. It would be no offence if the intention was that, the girl should be

brought up as a daughter, and that when she attains her age, she should be allowed to elect either to marry or to follow the profession of her

prostitute mother.

There is thus authority for the following positions (i) that the institution of dancing women cannot be ignored by the Courts and (ii) that adoption

by, such women is not necessarily illegal.

The case last cited is also authority for the position that, if the adoption was made with the intention of training the child to a life of prostitution,

the act would be criminal, and I agree with my learned colleague in holding that the Courts cannot recognize as against the temple trustee rights

claimed as arising from a criminal act.

I concur, therefore, in the order proposed by my learned colleague.

It has been further contended on behalf of respondent that the suit being brought by plaintiff when a minor without a next friend was opposed

to Section 440 of the CPC and should have been dismissed by the District Munsif on that ground. The objection was not taken in the Court of

First Instance--not in fact till appeal was preferred against the decree passed in plaintiff''s favour. This was too late, see ex-parte Brocklebank L.R.

6 Ch. D. 358 and Beni Ram Bhutt v. Ram Lal Dhukri ILR 13 Cal. 189. Plaintiff is now a major and was so also at the hearing of the appeal by the

District Judge, and though she was a minor when defendant''s appeal was preferred, he took no steps to have a guardian ad litem appointed for

her. This objection must therefore be disallowed.

In compliance with the above order, the District Judge submitted the following finding:

The seventh issue, upon which I am directed by their Lordships of the High Court to submit a finding, is whether the plaintiff is the adopted

daughter of Padmasani''s daughter, Minammal, and whether the adoption of the plaintiff is valid?

As to the fact of adoption there is no longer any dispute and the evidence of Padmasani, examined as the plaintiff''s first witness, shows that the

plaintiff was two or three years old when she and her elder sister Gnanambal were adopted by Minammal, who was 20 or 25 years of age at the

time and died a few years after the adoption was made.

The validity of the plaintiff''s adoption depends on the intention with which it was made, and, if the intention was that the plaintiff should be

prostituted while she was still a minor, then u/s 373, Indian Penal Code, the adoption was a criminal act out of which no private rights can flow.

On receipt of the order of remand from the High Court, I gave notice to the parties to produce evidence necessary for determining the question at

issue, and my reason for so doing was, that the evidence already on record was insufficient for the purpose. It was objected, on behalf of the

plaintiff, that I had no power to take additional evidence, since I had not been authorized to do so by the order of remand. In support of this

objection, reference was made to Section 562, Code of Civil Procedure, but that section relates only to cases which are remanded by an

Appellate Court to Court of First Instance for trial upon the merits and implies that additional evidence is to be taken if necessary. Hence it is in no

way applicable to the present case, in which the order of remand did not alter the position of this Court as an Appellate Court deciding an issue

which it had not decided before. An Appellate Court is empowered by Sections 568 and 569, Code of Civil Procedure, to take additional

evidence for the substantial cause that the evidence on record does not enable it to arrive at a decision. Hence four documents have now been filed

as Exhibits IV to VII, on behalf of the defendant-appellant, who has also recalled and examined as his seventh and eighth witnesses the persons

whom he examined as his third and second witnesses before the District Munsif, while the plaintiff has recalled her sixth and fourth witnesses

before the District Munsif and examined them as her ninth and tenth witnesses.

* * * *

I find, therefore, that Minammal''s intention In adopting the plaintiff was to prostitute her while she was still a minor, that the adoption was

therefore a criminal act, and that it is consequently invalid.

JUDGMENT

We agree with the Judge that he had the power to take additional evidence on the issues of fact remanded for trial, These were issues that had

been framed but not tried, and we see nothing in Section 566, Code of Civil Procedure, that prohibits the lower Court from taking evidence on

such issues u/s 568 so long as he complies with the requirements of that section.

The District Judge''s finding on the question of fact as to intention is supported by legal evidence. Accepting the finding, we dismiss the second

appeal with costs.

1.

Section 442: If a plaint be filed by or on behalf of a minor without a next frend, the

defendant may apply to have the plaint taken off the file, with

Plaint filed without next costs to be paid by the pleader or other person by whom it was

friend to be taken off presented. Notice of such application shall be given to such

file. person by the defendant; and the Court, after hearing his objec-

Costs. tions, if any, may make such order in the matter as it thinks

fit.

2.

Section 373: Whoever buys, hires, orotherwise obtains possession of any minor under

the age of sixteen years, with intent that such minor shall be

Buying of any mione or employed or used for the purpose of prostitution or for any

purposes of prositution. unlawul and immeral purpose, or knowing it to be likely that

such minor will be employed or used for any such purpose, shall

be punished with imprisonment of either description for a term which may extend to ten years,

and shall also be liable to fine.