1. These are proceedings under the Guardians and Wards Act in respect of two minor girls Shanta and Girja. The respondents-petitioners cousins applied to be appointed guardians of the persons of these girls and of their brother Sevaklal on the ground that the minors' mother Bai Mani had been leading an immoral life after her husband's death. During the pendency of the proceedings the petitioners Nos. 1 and 2 alleged that there was danger of Bai Mani's marrying the two minor girls unsuitably. Bai Mani undertook in Court not to marry the minor girls without the Court's permission and was allowed to retain their custody. She broke the undertaking and married them to opponents Nos. 2 and 3, Proceedings in contempt were taken against Bai Mani and the sons-in-law, and the District Judge directed Bai Mani to undergo imprisonment in the civil jail for two months and each of the sons-in-law to undergo imprisonment for one month.
2. All three appealed. The appeal of Bai Mani was not admitted. The appeal of the two sons-in-law was admitted. One of the sons-in-law Himatlal is dead and the appeal of Maneklal alone survives. The respondents are absent.
3. It is argued for the appellant Maneklal that he had not given an undertaking and no injunction had been served against him and he could not be punished for contempt, even though he might have known of the undertaking given by Bai Mani. That Bai Mani has been guilty of contempt there is no question. The further question whether a party such as the appellant in this case, who abets Bai Maui's contempt with the full knowledge of the undertaking, can or cannot be punished, has not been decided in any reported case. The only section under which the Court could take an undertaking from Bai Mani is Section 43 of the Guardians and Wards Act and the penalty for contempt is that laid down under Order XXXIX, Rules 1 and 2, Civil Procedure Code. These provisions prima facie would only apply to a guardian whose conduct has been regulated by the Court under Section 43, Clause 1, and the District Court, unlike the High Court, appears to have no other power to punish contempts. It has been held by this Court in Bai Diwali v. Moti Karson (1896) I.L.R. 22 Bom. 509 that a marriage in disobedience of such an order was legally valid, and it was even doubted whether Section 43 applied and should not be read along with Sections 24 to 26 of the Act and be confined to matters relating to the support, health, education, and advancement of a minor. With this doubt the Calcutta High Court did not agree: Monijan Bibi v. District Judge, Bir-bhum I.L.R.(1914) Cal. 351. The Calcutta view derives a certain amount of support from the observations of this Court in the subsequent case of Laxminarayan v. Parvaiibai (1919) 22 Bom. L.R. 399. As far as I know, the practice of the District Courts has been in accordance with the view of the Calcutta High Court in Manijan Bibi v. District Judge, Birbhum.
4. Speaking for myself, there would appear to be a serious lacuna in the law, if in a country of infant marriages the District Judge is helpless to punish parties guilty of abetting such contempt and responsible for unsuitable marriages. But in the present state of the law I am of opinion that the District Judge's powers are limited to the actual guardian in respect of whom the order is made, and it appears that the law, as at present framed, leaves a loophole for indirect breach and disobedience of such orders on the part of other persons who are at least as responsible as the guardian, such as, in the present case, the sons-in-law. In fact, the guardian, who simply abstained from taking any public part in the ceremony, might exempt herself or himself even from contempt and yet cause gross disobedience of the order of the Court and grave injury to the minor. That, however, must be a matter for the legislature and not for the Courts. Under the law as it stands, I am of opinion that the District Judge had no jurisdiction to punish Maneklal for contempt.
5. The appeal must be allowed and the order of imprisonment in respect of Maneklal set aside. The rule for stay is made absolute.
6. There will be no order as to the costs of this appeal.