1. This appeal raises an interesting, question of law. One Mangal, the father of plaintiff 2, instituted the suit claiming compensation for the seduction of his daughter, plaintiff 2. He died during the pendency of the suit and his widow Mt. Subanshi was brought on record as his legal representative and was allowed to continue the suit and has been given a decree. The defendant appeals, and contends that the cause of action died with Mangal and so the suit should have been held to abate. Under the English law as it stood before the recent statutory alteration the cause of action in such a suit did not survive because the action was founded on the implied loss of service by the daughter to the father. Niyogi J., however, following 4 All. 971 (’81) 4 All 97 , 1881 A.W.N 143 held that was not the foundation of an action for seduction in India but that the true ground was “the violation of the peace and honour of the family.” He said:
“……. it is more appropriate to look at such offences as constituting invasion of that right of the family to the security of domestic relations rather than as an interruption of the service rendered by the daughter to her father.”
2. He pointed out that the father is under legal obligation to maintain his daughter and also to perform her marriage and that any seduction of an unmarried daughter not only impairs the honour and reputation of the family but increases its pecuniary burden owing to the difficulty of getting her married thereafter. He therefore concluded:
“The infraction of the right is not the personal right of the father as the parent and guardian of his daughter but the right of the family as a whole to the security of the family relations.”
3. From this he inferred that the right of suit ordinarily resided in the father, he being the head of the family, but that in all such cases he sued on behalf of the family as a whole and so in his absence the right can be exercised and continued “by the mother or any other person who would be in a position to represent the family as such.” Accordingly he based the right of action “not in a recompense for violation of any personal right but as compensation for the potential pecuniary loss occasioned to the family as pointed out above.” With great respect we are unable to accept this line of reasoning. If it is right, then the family ought to possess an equal right in an action for defamation because an imputation of unchastity has only to be repeated often enough and to come from influential enough quarters for it to have quite as devastating an effect. But it has never been pretended that a civil action for defamation lies at the suit of any but the person defamed. It is, we think, necessary to think back to first principles. In the first place, it is not every injury that gives rise to an action for damages. We have just given an illustration. A slander of unchastity might well, in a given case, occasion more injury and hurt to the family than to the girl herself, but that would not give them a right of action. The ground must, therefore, be sought elsewhere.
4. It is true that under the English Common Law once the right of action is established, then the wounded feelings of the injured party, the honour of the family, and so forth, can be taken into consideration in estimating the damages, and indeed, exemplary or vindictive damages are encouraged in these cases. But though that was recognized at a very early date it has never been used to widen the right of action. On the contrary the House of Lords has decided that where there is no loss of service damages cannot be awarded whatever the mental pain or disgrace: (1861) 9 H.L.C 577. (1861) 9 H.L.C 577 , 8 Jur. (N.S) 724 , 5 L.T (N.S) 291 , 131 R.R 347 We think, it is elementary that no right of action for damages at large lies at law. It is necessary for the plaintiff in every case to bring himself within the four corners of some recognized head of law. He or she, cannot simply come come to a Court and say he, or she, has suffered injury and claim compensation. The only head under which an injury of this kind can fall is the tort of seduction. No statute applies. The matter does not come under Hindu law, or Mahomedan law, or any of the personal laws, nor is there any special law of seduction, other than that to be found in the English law of torts, applicable to India. The wrong must, therefore, either be a tort or, apart from the criminal law, nothing. Judges cannot legislate and cannot invent new heads of injury. That is the province of the Legislature.
5. That brings us to the law of torts as it obtains in India, or at any rate in this province. The law of torts is administered here under Section 6 of the C.P Laws Act of 1875 as a rule of Justice, equity and good conscience. But even those rules are not indefinitely flexible. It is true there is no need to apply the English law in all its details when that is found to be unsuitable to local conditions: see I.L.R (1938) Nag. 54 (’37) 24 A.I.R 1937 Nag. 354 , 174 I.C 401 , I.L.R (1938) Nag. 54 at p. 83, but it is generally recognized that the English law is to be used as a basis, and we cannot think that gives the Court power to invent new heads of law. It is one thing to say that the Courts ‘here need not apply any given English rule, or the English interpretation of a particular doctrine, when, shall we say, the Seotoh view is more appropriate to this country, and quite another to say that an English rule can be abrogated in all its aspects and an entirely new head of law invented. Even rules of justice, equity and good conscience must proceed along logical lines and be consistent with themselves and other branches of the law. Let us scrutinise the basis laid down by Niyogi, J. and the Allahabad Judges in 4 All. 97 (’81) 4 All 97 , 1881 A.W.N 143 in more detail. We think with respect that Niyogi, J. has misunderstood that decision. If it does anything it circumscribes the law and does not enlarge it as, we gather Niyogi, J. considers that it does.
6. The facts of the Allahabad case were as follows. A girl was married at a very early age and was then deserted by her husband. She came back to her father's house and lived with her parents for over seven years and then, while still a minor, she was abducted (not merely seduced) by the defendant. The father prosecuted and obtained a conviction. The prosecution cost him Rs. 300. He thereupon sued and claimed damages under four heads: (1) for the injury to his reputation, (2) for the loss of his daughter's services, (3) for the value of certain jewels taken with her and (4) for the costs incurred by him in the prosecution. The lower appellate Court held that Rs. 300 were the expenses incurred in the prosecution and awarded Rs. 200 for loss of service—Rs. 500 in all. Both the learned Allahabad Judges disallowed the Rs. 200 for loss of service on the ground that this fiction did not apply in India and only allowed the damages actually suffered. They did not take into consideration the/injury to the honour and reputation of the family etc. This is much narrower than the English rule where, as we have shown, once the right of action is established the matter of damages is left at large and exemplary damages are encouraged. In our opinion this is not the type of case in which special damage need be alleged or proved. If the Allahabad rule is to be applied to this case, then the whole suit would have to fail because no special damage has been established. It is not easy to determine the ground on which the learned Allahabad Judges proceeded. It would seem from the judgment of Stuart C.J that the matter he was debating was whether the action would lie at the instance of the father in the case of a married, as opposed to an unmarried, girl. He quoted Lord Tenterden in an English case (1827) 7 B & C 387, (1827) 7 B. & C. 387 , 1 M. & Ry. 166 , 6 L.J (O.S) K.B 23 , 31 R.R 236 as saying:
“Unless he (the husband) interferes, it by no means follows that such a relation (that of master and servant) may not exist, especially as against third persons who are wrong-doers.”
7. And then the learned Chief Justice said:
“The last words appear to recognise a principle of parental or family authority which might be usefully applied to the present case.”
8. We gather that he did apply that principle though he narrowed down the scope of the English rule in the matter of damages. It is true he said that he was not inclined to encourage the introduction of the English fiction about loss of service into India and that he preferred the Scotch and Continental rule where the girl herself can sue, but as the girl herself was not a party to the action in the Allahabad case and as the right of suit was upheld, it would appear that he did not apply the Scotch law. In fact one of his reasons was that “the parental control and authority of a father in India over his children do not appear to be so entirely destroyed as it is in England in the case of a married daughter,” and he said that:
“…. it was while thus under the protection of her father, and rendering him such services as I have indicated, that she was abduoted away by the defendant and seduced.”
9. He concluded by saying:
“Now it appears to me that it would be a very unsatisfactory state of the law in this country if such conduct against the peace and honour of respectable families were allowed to pass without a remedy and I think we must for that remedy hold that the suit at the instance of the father was properly and validly entertained.”
10. We gather from these passages that the learned Chief Justice did apply the English law, though with reluctance, and that he did it because he could not find any other satisfactory solution to the problem before him. But in doing so he also applied the rule about special damages: see, 28 N.L.R 320 (’33) 20 A.I.R 1933 Nag. 29 , 141 I.C 58 , 28 N.L.R 320 though he gave no reason for doing so. The other Judge Oldfield, J. did not say on what ground the action could in his opinion be sustained. All he said was that he considered the plaintiff was entitled to Rs. 300, the money he had actually expended on the prosecution, but not to the Rs. 200 given for loss of service. He said that he did not think it was desirable to introduce the English fiction to India and said:
“The plaintiff cannot be allowed to maintain a suit on a contract for service which is not seriously asserted, nor indeed found to exist in fact, and which is not consonant with Hindu customs.”
11. We find it difficult to deduce any legal principles from this decision. It does not indicate a departure from the English rule except in a sense unfavourable to the injured party, and in our opinion it affords no foundation for a widening of the English law. Turning to Niyogi J.'s judgment the great difficulty in applying his rule is to find any legal foundation for it. If the right of action is founded on “the right of the family as a whole to the security of the family relations” it must exist whenever that security is imperilled but, as we have seen, it does not. Defamation is a case in point; and a more apposite illustration in these modern times is this. A young man with perfectly honourable intentions pays his addresses to a girl and wins her affection. The parents, having a richer match in view, disapprove. Are they to have a right of action? Or look at it the other way round. A son refuses an attractive match, from the parents' point of view (because of the dowry which, we will assume, as is often the case, is to go into the family till), and chooses a less wealthy bride. Is the girl, who, we will assume, has a little competence of her own, to be sued for winning the young man's affection? and yet both these cases meet this rule.
12. Or take this case which constantly happens these days. An attractive high caste girl falls in love with a man of lower caste and marries him. The affront to her orthodox parents and their orthodox family circle is undoubted. The shook to them is often profound. The peace and harmony of their family circle is invariably rudely disturbed, especially when the younger members of the family take the girl's side, as is often the case. Nor is the injury always merely sentimental. The mother may fall ill through shook, or the father may get a paralytic stroke, or again, there may be loss of a rich dowry. But would any of these give them a right of action? The answer is, No. Then again, if the damages are not payable as compensation for the violation of a personal right but “for the potential pecuniary loss occasioned to the family” how will this meet the case of a married daughter, or widow, who under her personal law cannot marry again? A third difficulty is this. How can a right of action reside in such an inchoate entity as a “family”. Even under the Hindu law the right of action in respect of debts due, and on contracts, do not reside “in the family” but in its manager, but even if that were the rule under Hindu law, how jean Judges invent a new head of tort applicable to Hindus only. The law of wrongs, like the law of crimes, must apply to all alike. With the utmost respect, we do not see how the propositions laid down by Niyogi, J. bear analysis, and however unsatisfactory the English rule may be from the point of view of logic and reality, we can see no half-way house between its application and rejection. We can understand a rule where the right of action is given to the girl herself but we apprehend that even that would not do when the girl is a consenting party and there is no trickery or fraud or false promise on the man's part. In our opinion, we ought to accept the English rule rather than reject it. If we accept it, then we can apply it as a rule of justice, equity and good conscience. But if we reject it, then there is nothing that we can do because we would be inventing a new tort, and that is a matter which though within the province of the Legislature is not within the competence of Judges. If the English rule is accepted, then we think it is clear that the right of action dies with the father. The lower appellate Court, while accepting this, said that if the father had died without suing, the mother could not have sued, but held that once a suit had been launched by the father then it could be continued by his legal representative after his death. Unfortunately that is not so. Order 22, R. 1 of the CPC, deals with the question of abatement and states that “the death of a plaintiff…. shall not cause the suit to abate if the right to sue survives.” Admittedly the right to sue does not survive the father, therefore the suit abates. This becomes even clearer from B. 6 of that order which makes an exception in the case of a plaintiff dying between “the conclusion of the hearing and the pronouncing of the judgment.” That however was not the case here, so the suit abated on the plaintiff's death. We do not disguise the fact that eminent text writers regard the law of seduction as unsatisfactory. Salmon, for instance, says in his Law of Torts, Edn. 9, page 383:
“It is greatly to be desired therefore that the law should be put on a more rational basis, and that the real cause of action should receive legal recognition instead of being made available by means of a device which is little better than a legal flction.”
13. But Sir Frederick Pollock points out that the Courts cannot bring this about and we feel the same difficulty in India as English jurists in England. Sir Frederick says:
“Any different rule would be an anomaly. Positive legislation might introduce it on grounds of moral expediency; the Courts, which have the power and duty of applying known principles to new cases, but cannot abrogate or modify the principles themselves, are unable to take any such step.”
14. We have explored another possibility which has not been touched on hitherto. The daughter was also a plaintiff in this case and we have been at pains to Bee whether she has not a right of action in herself. Niyogi, J. holds that she has not and we think that he is right. We have no doubt that action would lie at her instance in suitable circumstances, but the genesis of the action would not be seduction. It would be some other tort such as assault, false imprisonment, or it may even be deceit, or again, a suit might be grounded in contract for breach of promise of marriage where such is the case. Sir Frederick Pollock points this out in his Law of Torts p. 231, Edn. 13, where he says:
“It is equally plain that on general principle a daughter or servant can herself have no civil remedy against the seducer, though the parent or master may: no civil remedy, we say, for other remedies have existed and exist. She cannot complain of that which took place by her own consent. Any different a rule would be an anomaly.”
15. The difficulty in this case is that the action is not so laid. The facts stated in the plaint do not give the daughter a right of suit. The facts stated are that the defendant was on friendly and familiar social terms with the plaintiffs and their family and that he used to visit their house almost every day. That he took advantage of this familiarity and of the second plaintiff's (daughter's) simplicity and want of experience of the world and seduced her to illicit intercourse. The important matter of consent is not touched on at all. There is no allegation of fraud or deceit or of the use of force. The action is laid as one for seduction, pure and simple. The defendant denied the seduction on the ground that the girl had consented. That of course was no defence to the father's action though it was relevant to mitigate damages, but if true, it would afford a complete answer to a suit at the instance of the girl. This statement was made on 10th September 1934. A week later the plaintiffs filed a rejoinder and the only reply to the defendant's allegation of consent was that as the girl was a minor she was legally incapable of consenting. This of course evades the question whether she did in fact consent. But a fortnight later, the plaintiffs made a further statement and said, referring to the second plaintiff:
“A minor and inexperienced girl the fell a victim to the wiles of the tempter. There could be no free and intelligent consent in her case and in fact there was no consent.”
16. We are afraid we cannot strain this into a plea which would be sufficient to sustain any of the various actions, such as assault or false imprisonment or deceit which would lie at the instance of the injured girl, particularly as the factum of consent has not been dealt with in any of the Courts hitherto, nor has the case been put in this way. The issue on the question of consent was:
“(c) Did she give her consent as alleged by the defendant? Could she give a free and intelligent consent?”
17. The answer of the first Court was': “No valid consent.” Neither the lower appellate Court nor Niyogi, J. has considered the matter. The attitude which the first Court adopted was that it was unlikely that Mt. Soni would make advances to the defendant of her own accord and that therefore “the defendant must have taken the risk of taking an initiative in this direction and that Soni succumbed to such overtures. Any subsequent consent of Soni or her omission to protest against the defendant's conduct cannot exonerate the defendant from his act of seduction.” This is in effect a finding of consent in fact, and we do not see how we can go into the facts at this stage on a matter which does not seem to have been challenged thereafter. The lower appellate Court does not touch the question and there is no ground of appeal about this to Niyogi, J. by the plaintiffs who lost in the lower appellate Court. As to the first Court's finding that there could be no valid consent because the girl was a minor, that overlooks that the consent we are considering is not consent to a contract but to sexual intercourse, and that the age of consent to that in India is 14 years: (see S. 375, Penal Code). The finding is that the second plaintiff has reached that age. The appeal succeeds. The decree of Niyogi J., is set aside and a decree will now be passed dismissing the plaintiffs' claim. But as to costs we appreciate the moral indignation of Niyogi, J. at the defendant's conduct and we realise that but for the accident of the father having died before decree the defendant would have been fully liable for exemplary damages. We therefore consider that this is a case in which he should be made to pay the plaintiffs costs throughout. We order accordingly.
18. Appeal allowed.
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