Maragh v Williams & Williams; Maragh v Williams

• Jurisdiction: Jamaica
• Judge: Edun, J.A.
• Judgment Date: 23 November 1970
• Neutral Citation: JM 1970 CA 60
• Docket Number: Civil Appeal No. 89 of 1969
• Court: Court of Appeal (Jamaica)
• Date: 23 November 1970

Court of Appeal

Eccleston, J.A.; Edun, J.A.

Civil Appeal No. 89 of 1969

Maragh

and

Williams & Williams

Maragh

and

Williams

Appearances:

Mr. Roy Taylor of counsel for defendants/respondents in both cases.

Mr. W.B. Brown of counsel for plaintiffs/appellants in both cases.

Contract - Marriage by promise — Breach — Damages

Edun, J.A.

1 Both actions (Plaints 215/69 and 216/69) were by consent of the parties heard together by the learned Resident Magistrate for the Parish of Clarendon. In the action (Plaint 215/69) Alfred Maragh, father of Leonard Maragh (plaintiff/appellant in action Plaint 216/69) claimed against James and Edith Williams (parents of Rachael Williams, defendant/respondent in Plaint 216/69) damages for breach of contract. The particulars of that section (Plaint 215/69) are that on 12 ^th May, 1968 as a result of Rachael Williams agreeing to marry Leonard Maragh with her parents' consent and as a result of Rachael Williams refusing to solemnise the marriage on 10 ^th November, 1968, he incurred great expenses and suffered loss and damages. In Plaint No. 216/69 Leonard Maragh sued Rachael Williams, by her guardian ad litem, for damages for breach of promise of marriage. For the sake of convenience, I will hereafter refer to the parties by their names rather than as appellants or respondents. In defence to action (Plaint No. 215/69) the Williamses pleaded the special defence, that Rachael Williams being under the age of 16 years at the date when the marriage was to be solemnised, the contract of marriage was void: “section 3 (2)” of the Marriage (Amendment) Law, No. 48 of 1957. In defence to Plaint No. 216/69, Rachael Williams pleaded the special defences of (i) that she was under 21 years of age when the contract of marriage was made and was entitled to repudiate it, and (ii) she could not contract a valid marriage as at the date when the marriage was to be solemnised, she was under 16 years of age.

2 On Plaint 215/69, the learned Resident Magistrate gave judgment of James and Edith Williams with costs and on Plaint 216/69, he gave judgment for Leonard Maragh in the sum of £50 and costs, but later in his reasons for judgment he said that on reflection, he was wrong as Rachael Williams “was not capable of contracting a legal marriage, on the 10 ^th of November, 1968 being then under the age of 16 years.”

3 The facts are not really in dispute and a careful examination of them reveals:–

• (i) On 12 ^th May, 1968, both Leonard Maragh and Rachael Williams, their own free will agreed to marry and immediately there after the parents of Rachael Williams gave their consent to marriage;

• (ii) Edith Williams told Leonard Maragh that her daughter was between the ages of 16 and 18 y years;

• (iii) Though the parties were of East Indian descent and of the Hindu religion, the marriage was to be celebrated before a marriage Officer by Christian rites at the Calvary Baptist Church;

• (iv) The date of the marriage was fixed to be celebrated on 10 ^th November, 1968;

• (v) Notice for banns, Ex.1. was duly published and in it Rachael Williams stated her age to be 18 years;

• (vi) On 10 ^th September, 1968, Edith Williams wrote letter, Ex.2, in which she insisted on being informed in ample time of the name of the Church in which the marriage was to take place;

• (vii) On 10 ^th November, 1968, Rachael Williams refused to exchange vows with Leonard Maragh on the ground that he had threatened her;

• (viii) At the trial, Rachael Williams gave evidence on oath that on 12 ^th May, 1968, when the promise of marriage was made, she knew her date of birth to be 24 ^th October, 1953, from her mother.

4 Learned counsel for the Maraghs submitted that Rachael Williams was capable, with her parents consenting, of contracting a legal marriage; that the Maraghs were at all relevant times ignorant of the true age of Rachael Williams and that the Maraghs were not in pari delicto and ware entitled to recover damages. On the other hand, counsel for the Willamses submitted that the agreement to marry was illegal as on 12 ^th May, 1968, Rachael Williams was in fact under 16 years of age, and being under 21 years, she was entitled to repudiate the agreement of marriage. “Section 3 (2)” of The Marriage (Amendment) Law No. 48 of 1957 provides that any marriage solemnised where either party is under 16 years of age is void.

5 For the purposes of civil liability, a person under the age of twenty-one is an infant, and by the common law his contracts are avoidable at his option, either before or after ha has attained his majority, unless for necessaries. By the Infants Relief Act 1874 all contracts entered into by an infant … (2) for goods supplied or to be supplied (other than necessaries) … shall be absolutely void. By way of corollary to an infant's liability for necessaries, ha may be absolutely bound by a contract which is clearly for his benefit. In Cowern v. Nield [1912] 2 K.B. p. 422, Phillimore J. said:–

“An infant is not necessarily liable on a contract merely because it is for his benefit. The only contracts which, if for the infant's benefit, are enforceable against him are contracts relating to the infant's person, such as contracts for necessaries, food, clothing and lodgings, contracts of marriage and contracts of apprenticeship and service. In my opinion a trading contract does not come within that category.”

6 The Court of Appeal case of Roberts v. Gray [1913] 1 K.B. 870 approved of the dictum of Phillimore J. At p.875 Hamilton L.J. said:–

“It seems to ma clear therefore upon the first question that this contract is one for necessaries, and in so far as the antithesis formulated by Cowern v. Nield by the Divisional Court is presented to us, I entertain no doubt that this is not such a contract, and is amply within the other side of the antithesis as there stated by Phillimore J., referring to contracts relating to infants' persons which can be supported such as contracts for necessaries, of which he there mentions various heads.”

7 Therefore, an infant can be bound by a contract of marriage – “if for her benefit.” In my view, the object of “s. 3 (2)” of the Marriage (Amendment) Law No. 48 of 1957 is to prohibit the solemnisation of a marriage where either party at the date of the marriage was under 16 years of age; it was never intended that contracts of marriage between infants would generally be illegal.

8 It has been argued by learned counsel for the Williamses that on 12 ^th May 1968 when the contract of marriage was entered into, the parties had agreed for the wedding to be solemnised on 10 ^th November 1968 and as on that date a lawful marriage between the parties was prohibited by law. There was, therefore, an agreement to do an unlawful act and so the agreement cannot be enforced nor can it give rise to any rights to either of the parties.

9 On this aspect, I wish to refer to the following statement of law in ...