Factum Valet

It is a doctrine of Hindu Law, which was originally enunciated by the author of the Dayabhaga, and also recognised by the followers of the Mitakshara, that a fact cannot be altered by a hundred texts. The texts referred to are directory texts, as opposed to mandatory texts. The maxim, therefore, means that if a fact is accomplished, i.e., if an act is done and finally completed, although it may contravene a hundred directory texts, the fact will nevertheless stand, and the act done will be deemed to be legal and binding. Thus, the mere fact that a transaction is condemned in the Smrities would not necessarily prove that it is void. The further question to be answered would be whether it is a legal condemnation or merely one which is moral. The corresponding maxim of the Roman Civil Law is factum valet quod fieri non debuit, which literally means that what ought not to be done become valid when done. The doctrine of factum valet was applied by the British Courts in India, whilst administering Hindu Law, on grounds of equity, justice and good conscience. Thus, this principle has been applied to validate the marriage of a girl who was given away in marriage by her mother, in violation of the text of Yajnavalkya, which confers a preferential right of giving away the bride to the father, on the ground that the text laid down only a moral precept. However, the doctrine applies only to directory, and not mandatory, texts. Thus, the principle of factum valet is ineffectual to cure an act done in contravention of a mandatory text. Thus, before the passing of the Hindu Marriage Act, the law regulating Hindu marriages was uncodified and governed mainly by the ancient texts. In those circumstances, it was held that the texts which prescribe rules for the guardian’s consent to the marriage are merely directory, and if a marriage was once performed and solemnised, it would be valid, although it may have taken place without the guardian’s consent. On the other hand, it has also been held that the non-observance of essential ceremonies of a marriage cannot be overlooked or cured by applying the doctrine of factum valet, as this is in contravention of the mandatory text of Hindu Law. (Deivanai v. Chidambaram, A.I.R. 1954 Mad. 657) Before the passing of the Hindu Adoptions and Maintenance Act, the doctrine of factum valet was also applied to cases of adoption. Thus, it was held that the texts which prohibit the adoption of an only son are merely directory; so also are those which enjoin the adoption of a relative in preference to a stranger. Hence, the adoption of an only son or of a stranger in preference to a relative, if otherwise complete, was not invalid. In such cases, the doctrine of factum valet would apply, and the act done (i.e. the adoption) would be valid and binding. (Wooma Davee v. Gokoolanund, A.I.R. 1878 3 Cal. 587) However, the ancient texts relating to the capacity to give and take in adoption and the capacity to be adopted are mandatory. Hence, an adoption in violation of these mandatory texts would be

invalid and the doctrine of factum valet could not be invoked to validate such an adoption. (Lakshmappa v. Ramaya, 1875 12 Bom. H.C. 364)