Skip to content


Salubai Ganesh Hatwalne Vs. Keshavrao Vasudeo Kortikar - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 122 of 1929
Judge
Reported inAIR1932Bom156; (1932)34BOMLR83; 137Ind.Cas.732
AppellantSalubai Ganesh Hatwalne
RespondentKeshavrao Vasudeo Kortikar
Excerpt:
guardians and wards act (viii of 1390), sections 47(i), 43-application to district judge by guardian of property for marriage of the ward-district judge- order for marriage of ward- wishes of guardian of the person or of the girl not consulted-jurisdiction-procedure in case of application for marriage of wards.; on the application by the guardian of the property of a minor girl aged sixteen suggesting two names of proposed bridegrooms for the girl, the district judge asked a subordinate judge to report who was suitable out of the two as a bridegroom. the subordinate judge having reported in favour of one of them, the district judge ordered the girl to be forthwith married to the approved bridegroom, without consulting, and even against the wishes of, the minor and the stepmother who was..........that when the proposal is made neither by the guardian for marriage nor by the guardian of the person appointed by the court, but is made by the guardian of the property of the minor, the learned district judge, without examining the minor and the guardian of the person and taking evidence on the point, has no jurisdiction to make a selection out of the two proposed bridegrooms and force the selection on the girl who is unwilling to submit to that selection, and against the wishes of the mother who is the person entitled to give the girl in marriage and who is appointed by the district judge as the guardian of the person of the minor. under these circumstances we think that the order passed by the learned district judge was improper and without jurisdiction and must be set aside. it.....
Judgment:

Patkar, J.

1. This is an appeal against an order of the District Judge selecting a bridegroom for a minor of whose person a guardian was appointed, and ordering the marriage to take place within four months from the date of the order.

2. The appeal is filed by the guardian of the person of the minor and a stay order has been obtained. It appears that one Ganesh Sakharam Supekar had two wives, one Mathurabai and the other Salubai, the appellant before us. The minors are the daughters of Ganesh from Mathurabai who predeceased her husband. The appellant is the step-mother of the two minors. After the death of Mathurabai, Ganesh adopted one Pandurang who brought a suit for partition and succeeded in getting a share decreed to him. After the partition decree was obtained by the adopted son, Ganesh died leaving a will dated August 19,1926, by which he bequeathed all his property to his minor daughters Sonubai and Vithabai. Damodar Harbaji, the brother of Salubai, the stepmother of the minors, was appointed by the District Judge on June 24, 1927, guardian of the property of the minors, and Salubai, the appellant, was appointed guardian of the person of the minors, On December 21, 1927, Damodar Harbaji, the maternal uncle, who was appointed guardian of the property of the minors, made an application to the Court to sanction the expenses of the marriage of the elder minor Sonubai, and put forward two eligible bridegrooms to whom the minor Sonubai should be married. One of the proposed bridegrooms, Bhagwant Shankar Kulkarni, aged 22, was described as a graduate of the Bombay University, and the other Harbaji Damodar Kulkarni aged twenty was stated to be the owner of a kulkarni watan of four villages with an annual income of Rs. 1000-1200 per year. The Sheristedar of the Court made a note on this application and suggested that the application of the guardian so far as it concerned the selection of the bridegroom should be sent to the Subordinate Judge,Pandharpur, for his report. It appears that in pursuance of the suggestion of the Sheristedar accepted by the learned District Judge the matter went before the Subordinate Judge who on January 16, 1928, recorded his opinion that the first boy Bhagwant Shankar Kulkarni was preferable as he was studying in the B. A. Class in the Fergusson College and his family owned an income of Rs. 1000, while the other bridegroom was studying in the local school and his income was Rs. 500-600, Thelearned District Judge, without examining the appellant Salubai, the guardian of the person of the minor Sonubai, or without consulting the wishes of the minor Sonubai who had attained the age of about sixteen years, apparently accepted the opinion of the Subordinate Judge and passed an order that he saw no good reason to reopen the question of selection of the bridegroom, sanctioned the marriage and further ordered that if the personal guardian put difficulties in the way by persuading the girl against the marriage she would be removed from the guardianship and anotherguardian would be appointed, and ordered the marriage to take place within four months. An application was made by Shankar Balaji Kulkarni, the father of the selected bridegroom, who agreed to bear all the expenses of the marriage on condition that he was paid Rs. 1,300 after the guardian of the minor obtained possession of the property. It appears that in the meanwhile DamodarHarbaji, the maternal uncle of the minor, was removed from his guardianship of the property and the Deputy Nazir was appointed guardian of the property. On the application of the father of the selected bridegroom the learned District Judge passed an order that he might spend the money for the marriage to be paid from the estate later. The appeal is filed against the order of the District Judge by the step-mother Salubai.

3. It is urged on behalf of the appellant that an appeal lies under Section 47, Clause (i), against an order directing the marriage of a minor ward and falling under Section 43 of the Guardians and Wards Act as being one regulating the conduct or proceeding of any guardian appointed or declared by the Court. This question was considered in Bai Diwali v. Moti Karson I.L.R. (1890) Bom. 509 and it was doubted whether the order would fall under Section 43 read with Sections 24 to 26 having regard to Section 41 of the Guardians and Wards Act under which the powers of the guardian of the person would be terminated on the marriage of a minor female. In Laxminarayan Sheshgiri v. Parvatibai I.L.R. (1910) Bom. 699 : 22 Bom. L.R. 399 it was held that under Section 43 the District Court could make an order regulating the conduct or proceeding of any guardian appointed or declared by the Court, but as no guardian was appointed in that case but the grandmother was allowed to retain custody of the minor under Section 12 of the Guardians and Wards Act, the order passed in connection with the marriage of the female minor was set aside as being without jurisdiction.

4. In Monijan Bibi v. District Judge, Birbhum I.L.R. (1914) Cal. 351 it was held that in the case of Mahomedans the words ' disposal in marriage' cannot be treated as included in the general words ' such other matters as the law to which the ward is subject requires' occurring in Section 24 of the Guardians and Wards Act, and that an order of the District Judge selecting a bridegroom for a female minor would not fall under Section 47, Clause (i), read with Section 43, Sub-section (1), and Sections 24, 25 and 26. In that case though it was held that the order was not open to appeal the Court interfered in the exercise of its re visional jurisdiction. In Bai Hani v. Bhailal : (1929)31BOMLR1120 it was held that the District Court can take an undertaking from the guardian of the person of a minor female not to marry her without the consent of the Court under Section 43 of the Guardians and Wards Act, and the mother of the minor who in breach of the undertaking given by her to the Court marries the girl can be proceeded against for contempt under Clause (4) of Section 43 of the Act. If the order passed by the learned District Judge falls under Section 43 of the Guardians and Wards Act, it would be appealable under Section 47, Clause (i). If, on the other hand, it does not fall under Section 43, we think this is a fit case in which we should exercise our revisional jurisdiction by treating this appeal as a revisional application.

5. The question arising in this case is whether the District Judge can pass an order selecting a particular bridegroom and forcing him upon the minor against the wishes of the minor and her stepmother who is appointed guardian of the person of the minor. It appears from the record of the case that the minor who is aged about sixteen is unwilling to marry the boy selected by the learned District Judge, and the step-mother who is appointed as the guardian of the person of the minor Sonubai also objects to the selected bridegroom. Under these circumstances we think that it was incumbent upon the learned District Judge to take evidence in the case, to examine Salubai and also the minor and then pass a proper order.

6. The order, however, is open to another objection on the ground of jurisdiction. It was held in Monijan Bibi v. District Judge, Birbhum that it was not the function of the District Judge to act as a match-maker, though the ward could not marry without the consent of the Court; and the proper procedure to be followed is laid down at p. 359 of the report as follows:-

The guardian for marriage of the infant, who may have negotiated for the marriage, must apply to the Disirict Judge for his sanction. Notice of the application shouldbe given to the infant, to the guardian of person if he happens to be different from the guardian for marriage, and also to such relations of the minor as the Judge may deem necessary. He will then consider the objections and suggestions, if any, and then determine whether the proposal of the guardian for marriage is for the true welfare of the minor or whether the marriage is unsuitable by reason of incongruity of ago, inequality of rank and fortune or any like reason. If, on the materials before the District Judge, he is satisfied that the marriage is not unsuitable, he will sanction it.

7. Under the Hindu law according to Mitakshara school the following are the persons who can give in marriage : (1) the father ; (2) the paternal grandfather; (3) the brother; (4) kinsman (Sakulya); (5) the mother. See Yajnyavalkya, Achara Adhyaya, verses 63 and 64, and Mayne's Hindu Law, 9bh Edition, p. 101. The texts have been dealt with fully in the cases of Ranganaiki Ammal v. Ramanuja Aiyangar I.L.R. (1911) Mad. 728 : 14 Bom. L.R. 768 and Bai Ramkore v.Jamnadas Mulchand I.L.R. (1912) Bom. 18 The natural guardians are the father and next to him the mother. See Mayne's Hindu Law, para 211. The divergence is explained on the ground that the texts relating to giving a girl in marriage do not refer to the legal right of disposal but to the ceremonial competence and bare right to give a girl in marriage. The mother has the right to give a girl in marriage and has the legal right of disposal and voice in the selection of the bridegroom of her daughter. It is not necessary to go into the question whether the step-mother is included in the word 'mother', but she would have the right to give her step-daughter in marriage in the absence of any other nearer relation.

8. In the absence of any person to give a girl in marriage, the maiden can have recourse to the king and with his permission select a bridegroom of her own choice. See Narada (Sacred Books of the East, Vol. XXXIII, Ch. XII; 20 to 22, p. 169):-

20. Let a maiden be given in marriage by her father himself, or by her brother with the father's authority, or by herpaternal grandfather or her maternal uncle, or by her agnates or cognates.

21. In default of all these by the mother, in case she is competent; (to act as guardian); if she be wanting in competence, the distant connections shall give a maiden in marriage.

22. If no such person be in existence, let the maiden have recourse to the king and let her, with his permission, betake herself to a bridegroom of her own choice.

9. The wishes of the minor in a matter of such supreme importance to her cannot be disregarded by the District Judge, and if the minor is old enough to form an intelligent preference, the Court may consider that preference.

10. In the present case the step-mother is appointed by the District Judge as the guardian of the person of the minor and is also the person who can give the minor in marriage. It was, therefore, within her province to make any proposal for marriage and place it before the District Judge for sanction, and if the learned Judge came to the conclusion on taking evidence that the marriage proposed was not unsuitable, it was within his power to sanction the marriage. But we think that when the proposal is made neither by the guardian for marriage nor by the guardian of the person appointed by the Court, but is made by the guardian of the property of the minor, the learned District Judge, without examining the minor and the guardian of the person and taking evidence on the point, has no jurisdiction to make a selection out of the two proposed bridegrooms and force the selection on the girl who is unwilling to submit to that selection, and against the wishes of the mother who is the person entitled to give the girl in marriage and who is appointed by the District Judge as the guardian of the person of the minor. Under these circumstances we think that the order passed by the learned District Judge was improper and without jurisdiction and must be set aside. It would be open to Salubai the guardian of the person of the minor or any person who claims to give the girl in marriage to make concrete proposals to the District Judge, and if the learned District Judge on taking evidence comes to the conclusion that the proposal made by the guardian is not unsuitable it would be within the discretion of the learned District Judge to sanction the marriage, or on proper grounds to withhold the sanction.

11. The result, therefore, is that the order of the lower Court will be set aside. Costs of the appeal and of the proceedings in the lower Court to come out of the estate.

Tyabji, J.

1. This appeal arises out of proceedings which seem to me to be misconceived. It does not appear whether the application was purported or understood to be made under the Guardians and Wards Act. It was entitled as a ' miscellaneous application ' in the District Court. In this Court the appeal is made and argued as though the proceedings were originally under the Guardians and Wards Act; and they must be considered to have been so intended.

2. The Guardians and Wards Act does not, in its main provisions, interfere with the substantive personal law of the parties in India as regards guardianship. It provides for two classes of guardians: of the person and of property. The Act does not contain any specific provision regarding the marriage of minors: still less does it provide for the declaration or appointment of a 'guardian for marriage',-if I may borrow a term which is in use inMuhammadan law, (translating the word wali). That term will be convenient to refer to the person, who, under the law to which the ward is subject, has authority, or is under the duty, to do some essential thing in connection with the marriage of the ward. The earlier portions of the Act deal with the method in which the Court may be moved, in order that a guardian, either of the person or of property, may be declared or appointed by the Court. Then Section 43 provides for the Court giving directions to guardians in the discharge of the duties which the Act lays upon them.

3. The provisions defining the functions of a guardian of the person are contained in Section 24, I refer to that section, as the question before us relates to the marriage of the minor : it cannot be conceived to fall within the functions of the guardian of the property of the minor. Under Section 24 of the Guardians and Wards Act, the guardian of the person of a ward is 'charged with the custody of the ward, and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.' Therefore, if it is within the power of the guardian of the person to deal with the marriage of the minor, it must be on the ground that the law to which the ward is subject requires the guardian of the person to look to the marriage of the ward.

4. Then, as regards the powers of the Court, they are laid down in Section 43 of the Guardians and Wards Act, The Court is empowered, on the application of any person interested, or on its own motion, to make an order regulating the conduct or proceeding of any guardian appointed or declared by the Court. The powers of the Court are restricted to regulating the conduct or proceeding of such a guardian as the Court itself has appointed or declaredLaxminarayan Sheshgiri v. Parvatibai I.L.R. (1919) Bom. 690 : 22 Bom. L.R. 399

5. In the present case, there were appointed under this Act guardians both of the person and property. The step-mother of the minor was appointed guardian of her person; and the stepmother's brother was appointed the guardian of her property. As I have already said, the only person that might conceivably make an application to the Court under Section 43, in regard to the marriage of the minor would be the guardian of the person; and the guardian of the person would be the proper person to apply, provided that the law, to which the ward is subject, required that the guardian of the person should look to the marriage of the ward.

6. The parties being Hindus, the law governing them must, of course, be the Hindu Law. The persons who are charged with the duty of marrying the girl are mentioned in a text of Narada, which is to the following effect:-

A father shall give his daughter in marriage himself, or a brother with the father's consent or a grandfather, maternal uncle, kinsmen, or relatives and in default the mother, if she is qualified; if she is not, remoter relations should give a girl in marriage.

7. There is also a text of Yajnavalkya, where the order of guardianship for disposing of a girl in marriage is: father, paternal grandfather, brother, kinsmen (sakulya), and mother. The texts were considered in Bai Ramkore v. Jamnadas Mulchand I.L.R. (1912) Bom. 18 : 14 Bom. L.R. 766 by Mr. Justice Chandavarkar.

8. Thus the jurisdiction of the District Court, under the Guardians and Wards Act, must be considered first by reference to Section 43 of the Guardians and Wards Act. The jurisdiction consists in this, that the Court may make an order regulating the conduct or proceedings of any guardian appointed or declared by the Court. What the conduct or proceedings of such guardians must be, is to be determined by Section 24, viz., the guardian must look to such matters as the law, to which the ward is subject, requires. Taking Sections 24 and 43 together, the District Court can only interfere in the matter of the marriage of the minor by regulating the powers given by the personal law of the parties to the guardian in question: the function of the District Court with regard to the marriage of a minor is to regulate the conduct or proceeding of a guardian appointed or declarared by the Court, provided that, under the law to which the ward is subject, it is within that guardian's function to look after the marriage of the minor.

9. The custody of the minor, which the guardian of his person has, gives him control over the minor's movements; and, in most cases, the minor may be physically prevented from being married against the consent of the guardian of the person ; the Court, in its turn, may exercise through the guardian appointed or declared by itself a similar control: Bai Mani v. Bhailal (1920) 31 Bom. L.R. 1120 But the powers of the Court extend only to regulating the conduct and proceeding of the guardian. In any case, if the law to which the minor is subject gives any authority or throws any duties upon any person other than the guardian of the person, in regard to the marriage of the ward, (to such a person I have been referring as the guardian for marriage) the Court cannot usurp those functions from the guardian for marriage. If these considerations are borne in mind, possibly the conflict between Bai Diwali v. Moti Karson I.L.R. (1896) Bom. 609 and Monijan Bibi v. District Judge, Birbhum I.L.R. (1914) Cal. 351 may be reconciled. The Court while appointing or declaring the guardian of the person may give him such directions as to enable and require him to prevent the ward from being married without the matter being brought to the cognizance of the Court. But the Court can only exercise its control over the guardian for marriage, indirectly, by making an order regulating the conduct or proceeding of the guardian of the person, appointed or declared, by the Court.

10. In the present case, the District Judge proceeded without even giving notice to the guardian of the person of the minor, although she was appointed as such by the Court, and through whom, if at all, the learned Judge could have regulated the conduct or proceedings in regard to the ward's marriage. It seems to me, therefore, that when the provisions of the law that I have referred to are considered, it is obvious that the District Judge purported to make an order which he had no jurisdiction to make. For the District Judge declined to consider either the welfare or the wishes of the minor, or to consult the guardian of the person or the persons who had, under Hindu Law, to see to the minor being married. He took no evidence on the question as to what would be for the welfare of the minor, and assumed to himself the jurisdiction of deciding upon the question that the minor should be immediately married, the question who should be the eligible persons whose claims should be considered, and the question who should be ultimately chosen for the purpose. Having assumed jurisdiction over all these questions to himself, he apparently delegated some of his assumed powers-of selecting the bridegroom-to the Subordinate Judge. The Subordinate Judge has not seen the rival bridegrooms proposed. The powers of selecting the bridegroom were sought to be exercised, not only without an application from, or notice to, the guardian for marriage, and without the intervention of the guardian of the person, but in the teeth of her opposition, and against the wishes of the minor herself, who had attained the age of discretion, being sixteen years old.

11. It seems to me, therefore, that the proceedings were entirely misconceived, and I agree that the order of the District Judge should be set aside. Costs throughout will come out of the estate.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //