Factum Valet
It is a Latin maxim - ‘factum
valet quod fieri non debuit’
It literally means that ‘what
ought not to be done, become valid when done it already.’
This doctrine was applied on
the grounds of equity, justice and good conscience while administrating the old
Hindu Law texts.
Certain formalities
stipulated in the old Hindu Law were ‘directory’ or recommendatory. Violation
of such formalities were cured by this doctrine.
If such formalities are ‘mandatory’
in nature, then this doctrine cannot be applied to cure such defect.
Before the Hindu Marriage Act
1955 there was no codifying Act for marriages of Hindus and it was regulated only
by the ancient Hindu texts, Dharmasastras. In the ancient Hindu texts there were
no mandatory rules to be followed; and if anyone contravened such guidance
found in the ancient text, he/she could do so; and on such doing it was excused
by applying the principle of ‘factum valet.’ i.e. such violation of the guidelines
in the ancient texts could be cured as if it was not prohibited in anywhere in
the ancient texts.
In the ancient text, the
father had to give consent for the marriage of his minor daughter given in
marriage to a boy. In the absence of the father, his wife i.e. the mother of the
girl gave such consent to such marriage. In the ancient Hindu text, only the
father had to give such consent and not the mother. Though it was not
prohibited, the mother had done it. Such defect in giving consent was cured by
applying this principle of factum valet.
NOW most of the Acts, Rules
are mandatory in nature and hence this doctrine is seldom applicable.
thnks
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