1. In this case one Girdhar Vithal died, leaving a widow and an infant daughter, named Bani, who was but a few months old at the time of Girdhar's death. Her mother Mathurabai seems to have been forced by the unkindness of her mother-in-law Rakhmabai to go away from the house of her husband's family and take refuge with her brothers Shridhar and Goverdhan. In their house she died about eighteen months after the death of her husband, and the orphan Bani has, since her mother's death, been brought up by Shridhar and Goverdhan.
2. It appears that a few years ago the brother of Girdhar Vithal, who is named Hiralal, endeavoured through the Mamlatdar to obtain the custody of Bani's person. He failed in this attempt, and as the Mamlatdar was not the proper authority to apply to, no significance can be attached to the application. Had Hiralal seriously desired to insist on his right and to take on himself the burden of the guardianship of the orphan Bani, he would have applied to the Civil Court either under Act XX of 1864 or under Act IX of 1861.
3. It was under the latter Act that an application was at length made in the present case by Hiralal and Rakhmabai to withdraw Bani, who was then ten years of age, from the care of her uncles into their own custody and guardianship. The declared object was to get the girl married. It appears in evidence that a practice has grown up in the caste, which, though disapproved, prevails more and more, of selling young girls as wives to aged men. Shridhar and Goverdhan, on this ground, opposed the application of Hiralal and Rakhmabai, which, as they alleged, could not, under the circumstances, have been dictated by any affectionate regard for Bani and her interests.
4. The District Judge would not order a transfer of the custody of Bani's person unconditionally to the applicants Hiralal and Rakhmabai. But recognizing Hiralal's preferable right as Bani's paternal uncle to general guardianship, he allowed him to propose a husband for her in competition with one to be named by Shridhar and Goverdhan. The young man named by the uncle, and preferred by the District Judge, is one Jivandas, and the District Judge has ordered that Bani be handed over to Hiralal one month before a day to be fixed for her marriage to this person.
5. The general authority, failing the father of the paternal relatives, to dispose of a girl in marriage is recognized by the Hindu law writers as a part of the guardianship which is correlative as a right and a duty to her dependence both as a female and as an infants See West and Buhler, pp. 232, 673 (3rd ed.); Nandlal v. Tapidas, 1 Bor. R.. 19 ; Kumla Buhoo v. Manishankar, 2 Bor 746 ; 1 Str. H.L., 101 ; 2 Ib., 204 (ed. of 1825). But those who seek the aid of the Civil Courts, in order to give effect to this authority, may not improperly be put upon such terms as may appear necessary in order to prevent the authority from being abused to the injury of the infant Where a father or mother is the guardian, the intervention of a law Court can very seldom be necessary or desirable. In the case of very gross misconduct and disregard of paternal duty, the Court may interfere, even in the case of a father The King v. C. Kistnam Naik, 2 S N Cas, 89 ; 1 N. L. Ca., 1 but the distinction between a parent and a more distant relative has been recognized by the English Courts Ex parte Hopkins, 3 P. Wms., 151 and is founded in nature Roach v. Garvan, 1 V. S, 158 . Had the uncle of Bani been her father, his conduct towards her would have been wholly unnatural; as it is, his long-continued indifference raises a strong suspicion that his proposal as to her marriage may not have been dictated by a purely disinterested regard for her happiness. The young man Jivandas has no means or business of his own. He holds the somewhat precarious position of assistant in a cloth shop at Vaizapur in the territory of His Highness the Nizam. Without in any way impugning the character of this candidate for Bani's hand, we may say that we have not the same guarantees for it that we should have if he were a resident in British territory. In approving Bani's marriage to him we should virtually remove her, at twelve years of ago, beyond the jurisdiction of the Court, which is bound to protect all helpless subjects of the State. The texts relied on by Colebrooke in 2 Strange's Hindu Law, 73, 74, 75 (ed. of 1830) for the doctrine of a general supreme guardianship of the State have in view no doubt-at least primarily-the protection of a minor's estate Coleb. Dig., Bk. V, t. 450, 451, and should not be allowed to overrule the specific provisions made by the Hindu law for the disposal of a girl in marriage. But the extended authority ascribed by Colebrooke and Strange to the Sovereign and the State is consistent-an opposite view would indeed be inconsistent-with the range of authority assigned to the Courts by the chief Hindu writers over all matters in litigation of sufficient importance to the community to be worthy of the attention of the king See West and Buhler's Hindu Law, p. 239 (3rd ed.), and the chapter of the Mitakshara on Judicature. We may, therefore, in perfect consonance with the precepts of the Hindu lawgivers, impose such terms in the present case as shall seem expedient on the aid we are asked to give to Hiralal in disposing of Bani.
6. It seems that brides are scarce in the caste. It does not appear that Bani has any liking for Jivandas. Hiralal should find for Bani a husband within British territory and under this Court's jurisdiction. He may be allowed six months for this purpose, and the opponents Shridhar and Goverdhan are to afford every facility for the marriage of Bani to the person proposed and approved by the District Judge. Failing such an arrangement, the local panchayat of the caste may, as proposed by Shridhar and Goverdhan, be asked to name a bridegroom to whom Bani may be married when he is approved by the Judge. The Judge will, of course, see that Bani is not in either case forced into a marriage that would be odious to her.
7. The parties severally to bear their own costs in this Court.