1. The parties to this suit are Hindus of the Prabhu caste, and the object of the plaint, as stated in its prayer, is to obtain a declaration (1) that the plaintiff, as the father and natural guardian of his daughter Sonabai, is solely entitled to her custody, and to keep her under his immediate care and protection; (2) that the defendants, or either of them, are or is not entitled to give the said Sonabai in marriage to Anandrav Dadaji, or any other person, without the assent of the plaintiff; and an order that the defendants, or either of them, may be decreed to deliver up the custody of the said Sonabai to the plaintiff. The plaint also prayed that the defendants might be restrained by injunction from solemnizing the intended marriage of the said Sonabai with the said Anandrav Dadaji, or with any other person, without the plaintiffs assent.
2. The facts are practically admitted, and are these:
3. In the Christian year 1869 the plaintiff was married to the defendant Ramabai, who is the daughter of the defendant Janardhan Vasudev. After their marriage the plaintiff and the defendant Ramabai lived together-sometimes in the plaintiff's father's house and sometimes in that of the defendant Jandrdhan Vasudev. In the year 1877 the defendant Ramabai gave birth to a daughter Sonabai, who is the subject of the present application. Ramabai and the plaintiff were then living in the house of Ramabai's father, and they continued to reside there together until the year 1880.
4. In that year the plaintiff and his brother were accused by the defendant Janardhan Vasudev of the theft of certain ornaments, and were, by the Presidency Magistrate, Mr. Nana Moroji, convicted of that offence. The plaintiff was sentenced to two years' rigorous imprisonment. After the expiration of his term of imprisonment the defendant did not return to live with his father-in-law, and probably would not have been permitted to do so; and apparently for some time he did not return to his own father's house,. but he eventually did so; and in the year 1884 he requested his wife Ramabai to come and live with him there with their daughter Sonabai. The house of the plaintiff's father was then, as it is now, a very small one, and there were several inmates living therein. The plaintiff was in very poor circumstances almost, if not altogether, dependent on his father, and Ramabai preferred the ample accommodation and luxurious mode of life afforded to her in her father's house, to taking up her abode with the plaintiff's father in his small and crowded house, and there sharing the poverty and disgrace of the plaintiff, The plaintiff then married a second wife. It is not alleged that the plaintiff ever treated his wife Ramabai, or their daughter, with unkindness. He appears to have been attached to them both. In November, 1885, Sonabai entered upon the ninth year of her age-an age at which it is customary for Prabhu's to seek husbands for their daughters, and in December of that year the plaintiff through his solicitors addressed the following letter to his wife Ramabai and her father:
Sir and Madam,-Under instructions received from our client, Mr. Nanabhai Ganpatrav Dhairyavan, the son-in-law of you, Janardhan Vasudevji, and the husband of you, Ramabai, we have to call upon you and each of you to send and deliver over the safe custody of the body of his (our client's) daughter Sonabai, now of the age of eight years, to his house at Parel, No. 36, next to the western gate of the Government House, within four days from the service hereof on you. Our client proposes to give his said daughter away in marriage during the approaching marriage season. In default of compliance with the above requisition therefore our client will be compelled to proceed further in the matter, as he may be advised, at your costs.
5. The defendants by their letter of the 3rd December declined to accede to that request. The plaintiff in his affidavit of the 12th June, paragraph 7, Says that at this time he had secured a husband for Sonabai in the person of one Moreshvar, and refers to the affidavit of Narayan Vasudev Kirtikar in support of his statement; but I think that, though there may have been some conversation about the matter, no actual negotiations upon the subject were entered into. This particular alliance is not referred to in the plaintiffs letter of the 2nd of December which I have just read. Beyond the writing of that letter the plaintiff took no steps to enforce the return of Sonabai to him until the present proceedings.
6. The plaint was accepted on the 13th of May last in vacation and on the same day I granted a rule nisi and an interim injunction restraining the defendants from solemnizing the intended marriage between Sonabai and one Anandrav Dadaji, or any other person, without the plaintiff's assent. I granted that rule upon the affidavit of the plaintiff, which stated as follows:
2. I further say that on the 18th instant I received a letter from one Babaji Cashinath, the husband of the first daughter of the said defendant Janardhan Vasudevji, asking me to see him on the subject of the intended marriage of my daughter Sondbai.
3. On the 11th instant I, in company with my brother, called upon the said Babaji Cashinath at his office on the subject of the said letter, when he informed me that my said daughter Sonabai was to be given in marriage to Anandrav Dadaji, and the same was to be solemnized on the 13th instant. I, therefore, strongly protested against such a thing being done without previously having obtained my consent; whereupon the said Babaji Cashinath said that the defendant Janardhan Vasudevji was determined to have it solemnized on the 13th instant.
4. I further say that, if the defendants above named are not restrained by an interim injunction, they will get my said daughter Sonabai married, and I will be permanently deprived of my right as her natural father and guardian.
7. Cause was shown by the defendants against that rule on the 12th instant by Mr. Macpherson on behalf of the defendants; while Mr. Starling, for the plaintiff, urged that it should be continued until the hearing. The question I have to determine is, whether that injunction should now be dissolved) or whether it should be made absolute until the suit comes on for final decision.
8. I have given the matter anxious consideration, because its decision, even at this stage, is fraught with important consequences to the parties and to the girl Sonabai, on behalf of the plaintiff it is said that, if I dissolve the injunction, the defendants will without his consent at once marry his daughter to her cousin Anandrav Dadaji, and that he will be for ever deprived of his right, as a father, to marry his daughter Sonabai to a husband of his own choice, and that Sonabai will be for ever united to a husband of whom he, the plaintiff, does not approve. The discharge of the rule will, therefore, operate as a decision of the suit, and the plaintiff will be deprived of his right to appeal, a marriage performed under such circumstances being final-Bai Rulyat v. Jeychund Kewul Bellassis' Rep., 1840-48, p. 43).
9. On behalf of the defendants it is urged that Sonabai is now in the ninth year of her age, and that a suitable husband has been found for her; that, having regard to the star under the influence of which she was born, if she is not married in the present Hindu month of Jyeshta, she cannot be married during the next two years, by reason of the absence of an auspicious day; that before that she may attain puberty; and that her not being married before that event will entail disgrace upon herself and her family. It is also said that her grandfather is old, and may not live until the girl attains her eleventh year, and that, in fact, having regard to the circumstances of the plaintiff, the difficulty of finding a husband in the Prabhu caste, and the chance of the girl's attaining puberty before her eleventh year, if Sonabai is not at once married, she may never be married at all. It is also said that, if I make the rule absolute, an .appeal from it cannot be heard before the expiry of the present marriage season, which will end in the current month of Jyeshta. Were it not for these considerations put forward on the part of the defendants, I should at once, after having heard the arguments of counsel, having regard to the impossibility of the marriage tie, once made, being severed, have made the rule absolute. Feeling their weight I postponed my decision until I had given the matter the fullest consideration I could give to it at this stage of the case.
10. As one ground for forbidding altogether the marriage of Sonabai with Anandrav Dadaji to be solemnized, it is urged by the plaintiff that they are first cousins, being respectively the daughter and son of two sisters, and that such a marriage is forbidden by the Shastras, and is opposed to the usage of the Prabhu caste. Upon a point of this kind the custom of the caste is the rule by which I ought to be guided; (see the authorities quoted in Mandlik's Hindu Law, pages 409-435 and 440) and upon the affidavits I have come to the conclusion that, according to that custom, the proposed marriage is not illegal, though it is of an unusual character so unusual that the defendants have only been able to specify one instance of its occurrence in their community. The fact of its being so very unusual should have weight given to it in considering the plaintiff's objection to the marriage; but I do not think that it alone is sufficient to justify me, under the circumstances I have referred to, in making the rule absolute.
11. Cause was shown against the rule, in the following manner: It was admitted by Mr. Macpherson, and indeed could not be denied, that by Hindu law the father is the proper person to give his daughter in marriage, and that under ordinary circumstances the conduct of the defendants in disposing of Sonabai in marriage without her father's consent would be indefensible but it was said that the plaintiff was a convicted felon, and was in poor circumstances, and was unable to provide a proper house for his wife Ramabai and her daughter, and his means were not such as to enable him to get his daughter married. It was difficult in all cases, it was said, to find suitable husbands for girls in the Prabhu community, owing to the scarcity of eligible boys but it was impossible for the plaintiff to do so, owing to his antecedents and his inability to gloss them over by bestowing a sufficient dowry upon Sonabai. It was argued that the plaintiff had thus forfeited his right as a Hindu father, or, at any rate, that the Court should not assist him in asserting his right to the injury of Sonabai 'The Court should stay its hand. The work of Mr. Simpson on Infants (page 136 et seq.) was referred to, as showing that under special circumstances the Court of Chancery in England actually went so far as to res-train a father from exerting his parental right to the custody and care of his children to the detriment of the latter, and the case of Ex parte Warner 4 Bo. Ch. C., 101 was especially relied on. Mr. Macpherson contended that, if the plaintiff was not entitled to the custody and care of Sonabai, as these authorities showed that he was not, those who had her under their care, namely, her mother and maternal grandfather, had the right to dispose of her in marriage, and a marriage effected by them would be a valid marriage, citing for the latter proposition Bai Rulyat v. Jeychund Kewul Bellassis' Rep., 1840-48, p. 43.
12. If upon this rule I had to consider whether the father or the mother of Sonabai was the person entitled to her custody, I should have to look more closely into the authorities referred to by Mr. Simpson than I have been able to do since the argument of the rule. At present I incline to think that a single offence by the father, such as an offence of theft, unconnected with the domestic relations, would not justify the Court in assuming that his house was not the proper home for his children, even though that home should not be as spacious and well appointed as the house of the mother's father, in which the mother resides. But I do not think that question need now be decided as it appears to me that it is not a necessary consequence, that because a father who has been once convicted of theft cannot offer to his wife and child a home in which the Court would compel them to reside, therefore the father is not to have a voice in the choice of a husband for his daughter, or is to be held to have lost his right to give his daughter in marriage to the husband of his choice. The one proposition does not seem to me to involve the other. I am supported in this view by a passage in the judgment of the Court in Maharanee Ram Bunsee v. Maharanee Soobh Koonwaree 7 Cal. W.R. Civ. Rul., 321 'So far as the formal issues framed by the Court of first instance are concerned, the right of guardianship was deemed to be the main issue, the pleader of the parties apparently considering that whoever was legally entitled to the guardianship of the minor was also entitled to give her away in marriage. The Deputy Commissioner himself was, however, aware that the real issue was as to the right to give the girl in marriage; and we cannot admit that the person who has the right of guardianship of a female minor is necessarily the person who has the right of disposing of her in marriage. It appears to me rather that, while in certain cases the two rights will be found to go together, in other cases they will be found to be severed, and to vest in different persons. We are led to this conclusion by the fact that, whereas the mother is unquestionably entitled to be guardian failing the father, she does not stand next to the father as regards the right of giving her daughter0 in marriage; because it is laid down in the Mitakshara that, in the first instance, the father is to perform the initiatory ceremony such as the marriage of his daughter: in default of him the grandfather; on failure of the grandfather, the brother; the uncle and his son (next in order): and that on failure of all the persons above enumerated, the mother has the right of disposing of her in marriage.'
13. The plaintiff has not deserted his wife or his daughter. He has offered them a house, and entreated them to join him in it. It is true that it is small and poor, and that the plaintiff only shares it jointly with his father and brother. I, by no means, blame the defendant Ramabai for refusing to share that house with the plaintiff. The conduct of the plaintiff has been such as to debar him of the right to blame her. I sympathise with the defendants in their desire to find a husband and a home for Sonabai; but, in the absence of authority, I am unable, on a rule of this kind, to hold that the plaintiff has forfeited his parental right to give his daughter in marriage, or that the defendants are justified in marrying her without her father's consent, and against his wish. That important question must be determined when the case comes to a hearing.
14. The next question which arises for consideration is, whether assuming that, as an abstract proposition, it is not shown that the plaintiff has forfeited his parental right, his conduct and delay are not such as to justify the Court in refusing to grant him a temporary injunction, under Section 493 of the Code of Civil Procedure (Act XIV of 1882), and leaving him to assert his right at the hearing? Though I may entertain doubts as to whether the plaintiff in filing this suit is not influenced by a feeling other than a desire for what he considers to be for his daughter's welfare, I do not consider that it is proved that such is the case. His father Ganpatrav Pandurang has offered to provide a husband for Sonabai, and that father's right to give Sonabai in marriage is clearly superior to that of the defendants: see the case already referred to (Maharanee Ram Bunsee v. Maharanee Soobh Kunwar 7 Cal. W.R. Civ. Rul., 321). The marriage of Sonabai with her mother's sister's son is of such a character according to the Hindu Shastras, and is of so unusual a nature even in the Prabhu caste, as may well render it (though not unlawful) unpleasing to the plaintiff. The plaintiff may feel that the proposed marriage of Sonabai into the family of her maternal grandfather may, in effect, sever the bonds of connection between him and his daughter by reason of the animosity which exists between the plaintiff and the father of Ramabai. To forego such feelings in consideration of his daughter's welfare is a course to which I might advise, but cannot compel the plaintiff. I must disregard sympathy in deciding a case of this nature. It is said I have a discretion in the matter. The plaintiff's delay has been urged upon me as a reason for its exercise. If it were established to my satisfaction that there had been delay on the part of the plaintiff, and that the defendants' or even Sonabai's interests had suffered therefrom, I should gladly exercise it, but I cannot say that there has been any undue delay. The defendants do not appear to have kept the plaintiff informed as to their negotiations for Sonabai's marriage, and it was apparently not until after his conversation with Babaji Cashinath that the plaintiff knew that the marriage between Sonabai and her cousin was about to take place. That was on the 11th May. Before that the plaintiff had not led the defendants to believe that he would consent to any marriage they might agree upon, nor do I think that the defendants could reasonably have drawn that conclusion from the plaintiffs not following up his letter of the 2nd December by active proceedings in Court. Lastly, it is not made out to my satisfaction that there is any well-grounded reason to fear that, if Sonabai be not married during the present marriage season, she may be condemned to a life of perpetual celibacy.
15. The affidavits of Anand Gangadhar Joshi, Pandurang Bhaskar Joshi, and Vishnu Mahadev Thosar on the subject are extremely guarded, and are sufficiently met by the affidavit of the plaintiff and of others not replied to. I make the rule absolute until the hearing. The costs will be costs in the cause.