History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v2.c26.304

v2.c26.304

The mother has been put low in the order of guardians probably because of the dependent status assigned to women and because of the fact that in the ceremony of *kanyādāna* she cannot personally engage but has to get it done through some male relative. The courts in modern India, however, have held that the mother is entitled to select a husband for her daughter even when the girl's paternal grand-father is living, though the actual gift may be made by a male. Vide *Bai Ramkore v. Jamnadas*, I. L. R. 37 Bom. 18, where Yāj. I. 63 is interpreted as only laying down who are to make a gift of the girl and as not intended to take away altogether the mother's right of selecting a bridegroom in favour of even distant relations. Vide also *Indi v. Ghania* (I. L. R. 1 Lahore 146), *Jawani v. Mula Ram* (I. L. R. 3 Lahore 29, where it was held that, after the father, the mother of a girl has the preferential right to select a bridegroom for her and that she is under no obligation to consult the girl's paternal kindred such as a paternal uncle), *Ranganaiki v. Ramanuja* I. L. R. 35 Mad. 728, (where all the authorities are examined). The Dharmasindhu states the important proposition that when the girl performs svayaṁvara or when the mother is to give away the girl in marriage, the girl or mother should perform the Nāndīśrāddha and the principal saṁkalpa is to be pronounced by her and the rest of the rite is to be performed through a brāhmaṇa.¹¹⁷⁰ Nārada states the general rule that if anything is done by one who is afflicted with lunacy or similar defects, what he does is as if not done. So a marriage settled even by the father if he is a lunatic need not be performed.¹¹⁷¹ If an unauthorized person (like a maternal uncle) were to give away a girl in marriage though her father is alive and fit, what is the result? The digests state that if the marriage has been completed by the performance of *saptapadī*, it cannot be set aside merely on the ground of the want of authority in the giver, since marriage rites are the principal matter and the authority to give is a very subsidiary matter, the absence of which cannot affect the principal matter. But before the marriage takes place a person who wants to give away a girl, though persons better qualified exist, can be prevented from doing so. Courts in modern India have followed these rules, relying on the doctrine of '*factum valet quod fieri non debuit*' (what ought not to be done when done is valid) and holding that when once a marriage is duly solemnized and is otherwise valid, it is not rendered invalid because it was brought about without the consent of the proper guardian for marriage or in contravention of an express order of the court. Vide *Khushalchand v. Bai Mani* (I. L. R. 11 Bombay 247) and *Bai Diwali v. Moti* (I. L. R. 22 Bom. 509).