1. This is an appeal against an order of the District Judge of Nadiad refusing to sanction the marriage of one of his wards upon the application of her personal guardian. A preliminary objection was taken that no appeal lay; but I am satisfied that the performance of a marriage is one of the 'proceedings' of a guardian that are referred to in Section 43 of the Guardians and Wards Act, so that any order passed under that section is subject to an appeal : see Reoti Lal v. Shiam Lal I.L.R. (1929) All. 74; also Monijan Bibi v. District Judge, Birbhum I.L.R. (1914) Cal. 351, Salubai Ganesh v. Keshavrao Vasudeo I.L.R. (1931) 56 Bom. 71 : S.C. 34 Bom. L.R. 83, and Laxminarayan Sheshgiri v. Parvatibai I.L.R. (1919) Bom. 690 : 22 Bom. L.R. 399, where by implication it could be inferred that Section 43 of the Act would govern the acts of a guardian appointed by a Court as regards the performance of the marriage of his ward.
2. In the present case it was alleged that the marriage was an unsuitable one because the bridegroom was thin and had a tendency to consumption, because he was indebted, and because he had already been married and had two children. The girl herself had written two letters, in the first of which she said that she was not willing to marry him, but afterwards said that she was willing and not only willing but ready. She also said in the second letter that her first letter ought to be ignored. The learned Judge however has thought that he ought to lay stress upon the fact that the girl originally expressed her unwillingness to marry and he does not seem to have thought it worthwhile examining her as to her present willingness, since he has come to the conclusion that she is not old enough to know her own mind. There are two letters upon the record written by the bridegroom in which he refers to debts; but there is nothing to show the amount of the debts, and there is nothing to show that they seriously affect his position. There is on the contrary the plaintiff's evidence to show that he is a man who comes from a family of considerable property and is prima facie a suitable match in that respect. It is admitted, however, that he is very thin, and the learned Judge seems to have thought that his health and constitution are bad. For this there is no evidence whatever. On the contrary there is evidence upon the record in the shape of a medical certificate signed by the Presidency Surgeon of Bombay (of the authenticity of which there can be no possible doubt) saying that after a careful examination no trace of past or present disease has been found and that he has a first class life for the purpose of insurance or marriage. I am, at a loss to know why the learned Judge has excluded this document from evidence merely because the Presidency Surgeon himself has not been called to Nadiad to give evidence.
3. Upon the evidence in the case there can be no doubt that the order of the learned Judge is wrong. The principles which should guide District Judges in a case like this are laid down in Monijan Bibi v. District Judge, Birbhum. That was a case where the District Judge had himself acted as a matchmaker and had committed various other irregular acts, and it was stated that the proper procedure to be followed in a case of this description was to allow the choice to be made in the first instance by the guardian who was responsible for the marriage and then for the District Judge to sanction the marriage unless he was satisfied that the marriage was an unsuitable one. The learned Judge correctly framed the issue in the first instance; but though he framed it in the proper form, showing that he realised that it was for him to find that the marriage was unsuitable before rejecting the application for sanction, he nevertheless treated it as if it was for the personal guardian to satisfy him that the marriage was in every way suitable. The result is that we have no evidence on the record of the case to show that the marriage is in any way unsuitable. In fact the only evidence in the legal sense that we have is the two letters showing that at the end of 1936 the bridegroom was to some extent indebted, and that originally the minor was pretending to be unwilling to marry this particular bridegroom though she afterwards changed her mind. It is obviously not enough to justify the rejection of the proposal of the man who knew more about it than any body else, and who is primarily responsible for marrying the girl, and, it is clear, arranged for the betrothal of the girl with the full consent of those who now oppose the marriage.
4. The matter will therefore have to be reopened and reconsidered by the Court below in the light of circumstances as they exist at the present date. It should frame an issue in the following terms and only reject the application if it is satisfied that the marriage proposed is unsuitable. I set aside the orders of the Court below and direct the Court to reopen the matter after a finding upon the following issue:
Is it shown that Jashbhai is an unsuitable husband for the minor on the grounds (a) of physical health as distinct from mere appearance, (b) of financial circumstances, in particular pecuniary embarrassment, (c) that the girl herself does not wish to marry him, (d) that somebody more suitable and acceptable to the girl is available and is willing to marry her, or upon any other ground which the Court thinks cogent
5. The parties should be given liberty to lead such evidence as they may require. The costs will be costs in the cause. In the event of the decision going against the personal guardian, the costs should be paid out of the minor's estate.