This article is written by Abha Singhal. In this article, the author has discussed in detail the doctrine of factum valet and its applicability concerning child marriages and cases of adoption in India. Moving ahead, this article also mentions landmark judgments relating to the doctrine of factum valet for a better understanding of the readers.

Table of Contents

Introduction

One of the most prevalent forms of human rights violations in India and all over the world is the act of child marriage, especially when it relates to the marriage of a girl child. The said act is detrimental to both male and female children, but it relatively affects a female child more due to premature sexual relations leading to early pregnancies, which is extremely harmful to the overall growth and development of a child. To justify this action, the doctrine of factum valet was introduced in the country by the British, which allows child marriage to take place without any legal objections. The entry of this concept of the doctrine of factum valet in India was through the two major schools of thought under Hindu law, namely the Mitakshara school of thought and the Dayabhaga school of thought, both of which played a significant role in shaping the socio-legal system of India.

Origin and Meaning of the doctrine of factum valet

The doctrine of factum valet originated from the Roman maxim of “factum valet quod fieri dabuit,” which translates to ‘what ought not to be done becomes valid when done.’ This essentially means that once an act is accomplished and eventually completed, it will be considered valid and lawful even when it is not. It was established to justify those practices or rituals that were deemed unlawful and void. In addition to that, this doctrine is only used against the rules and acts that are directory in nature and are not mandatorily to be followed. Thus, this doctrine is considered ineffective to cure an act that is in contravention of a mandatory text. For example, if a marriage is performed without the consent of the concerned parties or their guardians, this doctrine of factum valet can be used to uphold its validity, provided it is not considered invalid or void in any statutory law, as that would make it a part of the mandatory text.

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It is to be noted that, on considerations of equity, justice, and good conscience, British courts in India applied the idea of factum valet while administering Hindu law. As mentioned earlier, the reason why this maxim was brought to India was initially to justify a girl’s marriage who was given away by her parents when she was a minor. This act becomes applicable when the act of marriage of a minor girl has been performed and completed irregularly or in disregard of Hindu law.

Before the establishment of the Hindu Marriage Act, 1955, there was no codified Act in the country, and as a result, Dharmasastras were used to govern the same. The Dharmasastra is an ancient body of jurisprudence, containing the rules relating to interpersonal relations and the relations between the state and its people. If there was any contravention of the text, the doctrine of factum valet was used to resolve the conflict.

Schools of Hindu Law

Hindu law is considered to be the most ancient law in the world. It is believed to be around 6,000 years old. It was created by people to satisfy the needs of individuals and ensure maximum satisfaction for them. With time, there was a disparity in opinion amongst the commentators concerning the laws. By that time, various codes had been established and developed, being accepted in one part of the country but rejected by the other. Due to this contradiction and pool of varied opinions, different schools of thought emerged, out of which two major schools were:

1.     Mitakhara, and

2.     Dayabhaga.

Mitakshara School

The Mitakshara School of thought is believed to have been instituted by Vijnanesvara, who was a 12th-century scholar from the Dyanasty of Chanakya. The work of Vijnanesvara is also known by the name of Mitakshara, which is essentially a commentary on Yajnavalkya Smriti, which is considered one of the most sacred texts under Hindu law. The Mitakshara school of thought was believed to be primarily followed in the northern and western parts of the country.

In addition to that, the Mitakshara school of thought practices the principle of joint family property, under which all the members of the concerned family profess a right to ancestral property, and wherein the sons share an equal share in the property.

Dayabhaga School

The Dayabhaga school of thought is a school that is believed to have been established by Jimutavahana, who was also a 12th-century scholar from the province of Bengal. Jimutavahana’s work was also known by the name of Dayabhaga, a commentary on the Yajnavalkya Smriti, which is considered to be one of the most pious and heavenly texts in the eastern and southern parts of the country. 

Additionally, this school recognizes the type of property wherein individual ownership prevails over joint ownership and under which the said owner has the right to dispose of the property at his/her discretion. The thing that makes the Dayabhaga school of thought more significant in shaping Indian socio-legal development is the right available to women to have an equal share of property. 

Applicability of the doctrine of factum valet 

Concerning child marriages

The concept of child marriage says that a marriage consisting of one or both parties being minors or having not attained the age of majority as per the legal standards of the country must commence a marriage legally. As per Indian laws, the age of majority for a boy is 21 years, and for a girl, 18 years. Marriage that takes place before the completion of the said age would be considered child marriage and, hence, void in nature. In some parts of India, specifically in rural regions, girls are usually considered a burden on families, and it is a very common misconception widely prevailing in those areas that once a girl starts to mature, she is more likely to rebel against her parent’s choices to get married, and this mainly results in early marriage.

In the case of Venkatacharyulu v. Rangacharyulu (1890), the Indian judiciary upheld the validity of child marriage on the ground that it was not a contract and said that even if a person getting married is a minor or of unsound mind, the validity of the concerned marriage cannot be determined if the marriage rituals and rites are duly followed and solemnised.

Additionally, in the case of Sivanandy v. Bhagwanthayamm (1963), the Hon’ble Madras High Court ruled that even though child marriage is prohibited by law, it cannot be challenged and declared invalid if all the ceremonial rites and rituals concerning that marriage have been duly performed by the parties. Moreover, it was also held by the court that the scope of validity of marriage is beyond the provisions of law.

For cases of adoption

The doctrine of factum valet was also applied in cases of adoption, wherein there were certain legal texts consisting of rules and procedures to be adhered to for a valid adoption to take place but which were not considered mandatory. The doctrine of factum valet was applied to justify those specific adoptions that were considered to be irregular and defective. However, the doctrine was not applied to cases consisting of cases having a clear statutory bar or prohibition against the concept of adoption. 

For instance, if an adoption was to be done that was in complete contravention of the provisions of the Hindu Adoptions and Maintenance Act, 1956, then the application of this said doctrine was considered to be void. Hence, the doctrine of factum valet in cases of adoption is only applicable to cases where the rules concerning the same are only directory in nature and not prohibited by any statutory regulation.

For cases dealing with Section 29(1) of the Hindu Marriage Act, 1955

Section 29(1) of the Hindu Marriage Act, 1955, says that any Hindu marriage before the enactment of this Act, was considered valid as per the customs prevailing then, and such a marriage will not be invalidated by any subsequent changes in the legal landscape of the country. For instance, if a Hindu couple who got married in 1945 belonged to the same gotra, which is, as per law, now considered prohibited as per the Hindu Marriage Act, 1955, the said marriage will not be considered void in the eyes of law. The doctrine of factum valet validates such marriages, as this doctrine essentially accepts those acts that should not have been done in the first place. As elucidated earlier, before the enactment of the Hindu Marriage Act, 1955, there was no codified law in the country concerning the validity of a marriage, and hence, when there was any contradiction, it got excused by the application of the doctrine of factum valet. Therefore, Section 29(1) reflects this doctrine by giving recognition and validity to such marriages that were commenced before the enactment of such an Act.

Relevance of doctrine of factum valet in the present scenario

The relevancy of the doctrine of factum valet lies in the fact that it is still used by courts to justify and validate certain actions that are in complete violation of not just  Hindu law but also any statutory provision. However, this doctrine has also been contested and criticized, as it seems outdated and in complete contravention of modern principles of human rights and social justice. Moreover, it is being argued that this doctrine of factum valet is based on the psychology of patriarchal notions that seem to be in utter disregard for the autonomy and dignity of females in society. If still applied, this doctrine can be misused to a great extent to justify certain practices that go against the human rights and values of equality, justice, and good conscience, such as the practices of child marriage, dowry, sati, polygamy, female infanticide, and female foeticide, which are harmful to the growth and development of women and children and for society as a whole.

Important case laws

Sarla Mudgal v. Union of India (1995)

Facts

In this case, four petitions were filed by Hindu women against their husbands for converting to Islam and getting married again without ending their subsisting marriages. The women challenged the validity of the second marriage under Section 494 of the Indian Penal Code.

Issue

Whether a Hindu husband, by converting to Islam, can enter into a second marriage without dissolving his first marriage, and whether such a marriage would be considered a valid one in the eyes of the law.

Held 

The Supreme Court held that the conversion to Islam and the subsequent second marriage without dissolving the first would not be considered a valid marriage and the Hindu husband would be liable under Section 494, which penalises bigamy. The Hon’ble Court rejected the application for the doctrine of factum valet, as the second marriage was in violation of a statutory provision and was against the fundamental principle of monogamy. In addition to that, the court held that the doctrine of factum valet is not applicable in cases of marriage.

Deivanai Achi and Another v. R.M.Al.Ct. Chidambaram Chettiar And Others (1953)

Facts

A widow and widower get married according to the ceremonies adopted by the ‘Suyamariyathai cult’ or the self-respecter’s cult, which is under the auspices of the Purohit Maruppu Bugham or Anti Purohit Association. They decided to get married without following any rituals or ceremonies; all they did was convene a meeting amongst all their relatives and friends and declared that they would become husband and wife and start living together thereafter.

Issue

Whether this is a lawful marriage and whether the doctrine of factum valet could be imposed here.

Held

In this case, the Madras High Court held that the marriage between the widow and the widower is not valid because, in the year 1967, the Hindu Marriage (Madras Amendment) Act was passed under which Section 7A was introduced into the Hindu Marriage Act, 1955. Section 7A laid down certain conditions to be followed for a marriage to be considered a valid one, and the said section was held to be retrospective, making this judgment come under it as well. Hence, the doctrine of factum valet could not be imposed here.

Parvathy Ammal v. Gopala Gounder and another (1956)

Facts

In this case, the petitioner Parvathy and respondent Gopala went to the temple and performed ceremonies, including the tying of thali, which is considered a symbol of marriage among Hindus but didn’t perform Sapthapathi, which is considered an essential practice as per the Shastraic rites. They got married and, after some time, got separated. The petitioner started asking for maintenance from the respondent, claiming that they were legally married.

Issue

Whether this is a legal marriage even when they didn’t perform the ceremony of Sapthapathi?

Held

The Hon’ble High Court of Madras held that the marriage was valid by applying the doctrine of factum valet. The court opined that the practice of tying thali in the community to which the petitioner and the respondent belonged was considered an equally important practice as Sapthapathi, and no evidence says that Sapthapathi was considered necessary for the marriage to be held valid. 

Hem Singh And Mula Singh v. Harnam Singh And Another (1954)

Facts

In this case, the appellants, Hem Singh, and Mula Singh, were the first cousins of the respondent, Harman Singh. The respondent had no male issue and adopted Gurmej Singh by deed of adoption. The appellants challenged the validity of the deed under the customary law and contended that only near ones could be adopted since Gurmej was his collateral in the 8th degree.

Issue

Whether the adoption was valid under the customary law, and can the doctrine of factum valet be used to justify the same?

Held

The Supreme Court upheld the validity of the adoption and said that the requirement of adoption of a near one is only directory in nature and not mandatory; hence, the doctrine of factum valet will be applied to justify the same.

Salekh Chand v. Satya Gupta And Others (2008)

Facts

The Hon’ble Supreme Court of India was hearing a civil appeal involving a disagreement over who should own the house that the four brothers inherited. Om Prakash and Salekh Chand, the plaintiffs in this case, stated that they had bought one-fourth of the land from Chandra, the widow of one of the four brothers who had passed away without any problems. The defendants, Satya Gupta, and others, on the other hand, disputed the legality of the sale deed, claiming that Brijesh Kumar was the only successor to Chandra Bhan and that Bhan had adopted Brijesh Kumar, the brother of another brother, Battu.

Issue

The issue before this Hon’ble Court was whether the adoption of Brijesh by Chandra Bhan was valid and justified under Hindu law and whether the doctrine of factum valet was applied to make this valid or not.

Held

The Hon’ble Court held in this case that the adoption of Brijesh Kumar by Chandra Bhan was deemed invalid in the eyes of the law as it was contrary to the mandatory texts of Hindu law that prohibit the adoption of a sister’s son. Moreover, the Court also held that the doctrine of factum valet could not be applied to cases that were in direct contravention of the provisions of the mandatory texts. The Hon’ble Court, hence, upheld the validity of the sale deed executed by the widow of Chandra Bhan in favour of the plaintiffs and thereby dismissed the appeal of the defendants.

Conclusion

The doctrine of factum valet is a principle of Hindu law that justifies an act that should not have been justified in the first place. In the modern day, when specific legislation has been established for acts to maintain and uphold the values of equity, justice, and good conscience, the relevancy of the doctrine of factum valet is in question. It has been challenged and criticised for violating human rights, affecting females at the worst, such as in the cases of child marriage, which is a gross violation of human rights, severely affecting the overall psychological and physical development of a child, and leading to grave injustices that were bestowed upon innocents in Indian society. Therefore, being a complex and controversial concept, there is a need to examine it in light of modern scenarios, keeping in mind the social and legal norms that are attached to it.

Frequently Asked Questions (FAQs)

How did the British courts apply the doctrine of factum valet in enforcing Hindu law in India?

The British courts applied the doctrine of factum valet, keeping in mind the principles of equity, justice, and good conscience. The Britishers respected the traditions and customs of Hindu law, and only applied this doctrine to the directory texts and not the mandatory ones in the country.

How did the codification of the various laws under Hindu law affect the doctrine of factum valet?

The codification of laws such as-

  1. The Hindu Marriage Act, 1955;
  2. The Hindu Succession Act, 1956; and 
  3. The Hindu Adoptions and Maintenance Act, 1956, 

reduced the relevancy of the doctrine of factum valet. It is so because the codified laws laid down specific rules for the various aspects of Hindu law, making them mandatory to be followed, thus making the doctrine of factum valet invalid.

What are the criticisms of the doctrine of factum valet?

The doctrine of factum valet is against the principles of morality, social welfare, and justice, as it validates those acts that are immoral, illegal, or harmful to society at large. Moreover, it is inconsistent since it applies only to certain aspects of Hindu law. It is based on the rigid interpretation of Hindu law texts, ignoring the purpose and spirit behind them.

How is the doctrine of factum valet applicable to marriages under Hindu law?

The doctrine of factum valet is applicable to marriages under Hindu law that are performed irregularly or without adhering to the ceremonial rites and requirements as prescribed by the mandatory texts enshrined in the Hindu scriptures. Moreover, the doctrine of factum valet declares that once a marriage is done and consummated, it is to be considered valid in nature even if it is entered into without performing the rites and rituals or without the consent of the parties involved thereto. However, it is to be noted that this doctrine of factum valet does not apply to marriages that are prohibited by the mandatory or essential texts of Hindu law, such as marriages within the prohibited degrees of a relationship or marriages consummated between persons of distinct castes.

What is the difference between directory texts and mandatory texts under Hindu law?

The difference between a directory and mandatory texts under Hindu law is that the directory texts are, as the name suggests, a directory in nature and are optional and recommendary rules or principles of Hindu law. On the other hand, mandatory texts are those texts that prescribe essential or obligatory rules of Hindu law, such as the rule of prohibition of incestuous marriages under Hindu law.

What are the consequences of applying or not applying the doctrine of factum valet to an act that is in direct contravention of Hindu law?

If the doctrine of factum valet is applied to an act that is in violation of the mandatory texts as mentioned under Hindu law, the act becomes legally binding and effective. On the other hand, if the doctrine of factum valet is not applied to an act done in complete contravention of Hindu law, the act is invalidated and becomes null and void in the eyes of the law.

What are the sources of Hindu law that govern the validity of marriage and adoption acts?

The sources of Hindu law that govern the validity of acts such as marriage and adoption are the ancient scriptures, such as the Smritis, the Vedas, the Dharamsutras, and the Dharmashastras. Moreover, other sources such as customs and usages (like the local, tribal, family, and caste-related customs), digests and commentaries such as Dayabhaga and Mitakshara, judicial precedents, and statutory legislation such as the Hindu Marriage Act, 1955; the Hindu Adoptions and Maintenance Act, 1956; and the Hindu Succession Act, 1956.

What are certain factors that determine whether the doctrine of factum valet can be invoked or not in a given case?

The factors that determine whether the doctrine of factum valet can be invoked in a given circumstance are the nature and extent of the violation of the principles of Hindu law, the consent of the parties involved in the case, the intention of the parties involved, the effect and consequences of the act on the interests and rights of others, public health and morality, and parameters such as equity, justice, and good conscience.

What are the possible effects of the doctrine of factum valet on child marriages in India?

The doctrine of factum valet is applied to uphold the validity of such child marriages under Hindu law that are detrimental to the rights and welfare of the children, especially girl children in India. Additionally, child marriages lead to premature sexual relations, health risks, a lack of education and employment opportunities, and many more. Importantly, the doctrine of factum valet ignores the consent and well-being of the children being subjected to child marriages, thus harming the rights of children in the country.

How does the concept of the doctrine of factum valet relate to the concepts of equity, justice, and good conscience?

The doctrine of factum valet relates to the concepts of equity, justice, and good conscience by providing and enabling a flexible approach to the application of Hindu law. The doctrine of factum valet acknowledges the social and political realities of the country under Hindu law and tries to avoid hardships for the parties involved in a case that is being done in direct contravention to the mandatory or essential texts under Hindu law. Additionally, the doctrine of factum valet also tries to strike a balance between the interests of the individual and the interests of the community under Hindu law.

What are the possible alternatives to the doctrine of factum valet?

The alternatives to the doctrine of factum valet under Hindu law are the doctrines of void and voidable acts. The doctrine of void acts states that any act that is done in contravention of the essential or mandatory texts under Hindu law is null and void and has no legal effect. On the other hand, the doctrine of voidable acts states that such acts that are done in contravention or violation of any directory or non-mandatory texts of Hindu law are valid in the eyes of the law, but only till the time they are not being challenged and set aside by any competent judicial authority.

What are the challenges of the doctrine of factum valet in contemporary Hindu society?

The prospects and challenges of the doctrine of factum valet are that this doctrine faces the issue of adapting to the changing norms and rules of Hindu society, as influenced by factors such as health, education, modernization, urbanization, and globalisation. It also faces the challenge of harmonizing with the statutory laws of the country, which are based on the values of justice, equality, and harmony. Moreover, the doctrine of factum valet faces the issue of preserving and promoting the human rights of women and children in a rapidly evolving Indian society.

References

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