The Doctrine of “Factum Valet quod fieri non debuit” means what ought not to be done becomes valid when done. This principle was formulated by the authors of the Dayabhaga school and was recognized to a limited extent by the followers of the Mitakshara school. The doctrine of factum valet states that once an act is done or a fact is accomplished it can’t be altered by the written texts of laws. As the fact is considered to be a concrete establishment and is deemed to be legally binding.
The doctrine of factum valet is dealt by the author Dayabhaga a recognized followers of the Mitakshara. It comes from the Roman maxim “Factum Valet Quod Fieri Dabuit”. This theory was introduced to justify the girl’s marriage, which was given away by her parents. The doctrine of factum valet is ineffective in curing an act done in violation of obligatory things. Therefore, once a marriage has been contracted and consummated, it is valid even if it is entered into without consent. In enforcing Hindu law, the British courts enforced the doctrine of factum valet applies to equity, justice and good conscience.
The Doctrine of Factum Valet means that an act not to be done is valid when it is done. Hundreds of texts do not deny the fact. This doctrine is applicable when there is an obligation, not a statutory prohibition, for the thing. In other words, if the act is performed and eventually completed, the act will be considered legal and binding. The doctrine is also applied to the validity of marriages which have been performed irregularly or without regard to Hindu law, which is a directory.
Before the Hindu Marriage Act, 1955, there was no codification law and it was governed by dharmasastras. If there is any contradiction in the text, it was excused by applying the principle of factum valet, and any violation of the directives in the ancient text could be resolved.
In Venkatacharyulu v. Rangacharyulu & Anr., – (1891) ILR 14 Mad 316, it was held that if the adoption cannot be granted due to a legal defect, the adopted boy does not lose his status as a son in his natural family and might as well it is believed that when the marriage ritual is postponed for the reason that it is prohibited very law that prescribes the ritual, the girl’s previous legal status remains unblemished the ritual is tainted and is therefore ineffective. But religious theory above and social difficulties that may arise from marriage set aside is a legitimate ground for recognizing the doctrine of factum valet except in cases of clear fraud or violence where it can be assumed that it is a religious ceremony tainted by fraud on her politics.
In Deivanai Achi & Anr., v. R.M.AI.Ct Chidambaram Chettiar and Others – (1954) AIR Mad 657, it was held that the factum valet doctrine has also been used to validate marriages. The the doctrine, it must be remembered, allows to cure the violation of the directory provision or mere form, but does not cure the fundamental principles or nature of the transaction. As in this case, no ceremonies were observed; the doctrine of factum valet cannot help plaintiffs. Except, in this case, as we have already stated, the first plaintiff and the third defendant he deliberately decided to deviate from the law and customs and entered into a marriage the ceremony did not recognize either. The doctrine of factum valet cannot, in our opinion, to apply to such a case of willful misconduct. So we have to hold on that there was no valid marriage between the first plaintiff and the third the defendant and that the issuance of this bond is illegitimate.
In Hem Singh and Mula Singh v. Harnam Singh and Anr., – 1954 AIR SC 581, it was held that Adoption Deed where the Exhibit of the first defendant states that Harnam Singh had no male issue who could perform his kirya karam ceremony which Gurmej Singh had been brought up after his death he was raised by his wife when he was a child and that he adopted him according to prevailing custom. The recital continues that since the adoption he had been treating and calling Gurmej Singh his adopted son. This fact was well known in the village and the adopted child enjoyed all the rights of a son. He drew up a formal document in his favor to put an end to it a dispute that might arise about his adoption. He made him like an adopted son the owner of all his property. There is sufficient evidence to support the finding on adoption facts in cases like the above, the texts were just a directory, a principle the factum valet applies and the act performed is valid and binding.”
In Muthupillai v. A. Thirumalai And Another – 1996 MLJ 1 504 it was held that the proof requires strict and almost severe scrutiny and the longer the time goes back from the date when the power was given to the time when it comes to be examined, the more necessary it is having regard to the falibility of human memory and the uncertainty of evidence given after the lapse of such time to see that the evidence is sufficent and strong. It is also argued that there is no presumption as regards adoption, as in the case of marriage the long cohabitation is proved. My attention is also drawn to a passage in Mulla’s Hindu Law, 16th Edn. page 532 Para 513A, according to which, the principles of factum Valet is ineffectual in the case of an adoption in contravention of the provisions of the texts relating to the capacity to give, capacity to take and the capacity to be the subject of adoption, which are mandatory.
In Salekh Chand (Dead) By Lrs. v. Satya Gupta And Others – 2008 SCC 13 119 it was held that the texts relating to the capacity to give, the capacity to take, and the capacity to be the subject of adoption are mandatory. Hence the principle of factum valet is ineffectual in the case of an adoption in contravention of the provisions of those texts.”
Author: Ashvath Neelakandan,
Third Year Law Student at Chettinad School of Law