Norman Macleod, Kt., C.J.
1. The petitioner was 'married to the minor in May 1922, The minor was born on December 29, 1910, and was, therefore, 11 1/2 years old at the time of her marriage. It may be taken as admitted that in February and March 1923, the husband and wife lived together as such. Thereafter disputes arose between the minor's father and her husband's father, with the result that in March 1923, the minor having gone to her father's house, he refused to allow her to go back to her husband, After a long correspondence the husband tiled this petition on October 16, 1924, praying that he might be declared to be the guardian of the person and property of his minor wife. It came on for hearing before the Chamber Judge in November 1924. He questioned the minor in his chambers when she told him that she was afraid to live with her husband in her present state of health, that her husband and his father had treated her cruelly when she lived with them, that her husband had threatened to treat her cruelly when she returned to his house and generally she asked that some time might be allowed to her. The Judge was of opinion that the girl was in good health and well developed for her age, but although he thought that her answers to his questions were influenced by her father, he adjourned the matter for three months. A short time before the three months' expiry, an application was made to the Judge to allow the minor to be taken out of Bombay on account of her health which was successful, and this matter was not heard again until the closing days of the Easter term in 1925. By the Judge's direction the minor was examined on April 10 by Dr. Miss Jhirad and her certificate appears on page 1, Part III, of the printed book.
2. I may say at once that it is clear from the evidence that the stories put forward by the minor's father that she was in a poor state of health were absolutely false, and that his main idea was to prevent the matter coming to a hearing. Miss Jhirad's certificate was proof that the girl had arrived at the age of puberty, and the Judge himself was constrained to express his opinion that the minor and her father had told an untruth When they said that the minor had not menstruated. But the Judge felt that in these days he would not be justified in ordering a fully developed girl who was able to understand her own interest to go and live with her husband so as to enable him to exercise his marital rights against the wishes of the girl. He did not decide the question of Hindu law whether the husband was entitled to the custody of his wife; he merely said that under Hindu law the husband either was or was not entitled to such custody, and dismissed the petition on what he called a technical ground, by which I presume he meant his own disinclination to order a minor to go and live with her husband against her wishes. Still, after referring to the action of the minor's father in asking for an order of the Court to remove the minor out of Bombay as having been entirely mala fide, with which aonclusion I entirely agree, he finished the judgment by saying:- ' In the view I take of the law I am constrained to dismiss the petition,' The matter has now come before us in appeal, seven months after the Judge dismissed the petition, though as a matter of fact the reasons therefor as contained in the judgment were not published till June, The girl will be fifteen in another month, and when the respondent's counsel found that we were in favour of allowing the appeal, he suggested that we should order the minor to be examined again. We saw no necessity for adopting that suggestion. If the minor has not yet attained the age of puberty, that would easily have been proved by the evidence of those who could have kept her under observation since last April, but no application was made to us to admit further evidence.
3. It is admitted that in law the husband is the natural guardian of his minor wife; while the opponent is clearly bent on preventing him having the custody of his wife by every possible means.
4. There can be no reason whatever for rejecting the petition, for the law is that the husband is entitled to the custody of his wife unless good cause be shown to the contrary. The fact that a girl is not mature would be a ground for the Court refusing to give the custody of his wife to a husband unless her parents were dead and the Court could be convinced that no attempt to enter into congujal relations would be made before maturity, and generally speaking it is in accordance with Hindu custom that a girl after marriage lives with her parents until she attains to puberty.
5. Again, if there was any evidence that would satisfy us that the petitioner would ill-treat his wife, we would reject the petition, but all that his counsel could suggest was that it was wrong for the petitioner to obtain the custody of his wife, when he intended that she should live with him as his wife.
6. From the evidence on the record we consider that in the ordinary course of nature, if she does so live with him no ill-effects would be apprehended. But while allowing the appeal and appointing the petitioner guardian of the person and property of his wife, we must impress upon him that his wife is now a ward of the Court, and under our protection, so that he take heed that he gives no opportunity to his father-in-law or any one else to make allegations against him of ill-treating his wife. We express our disapprobation of the opponent's conduct by. making him pay the petitioner's costs throughout. His obstinacy and mendacity are responsible for the inordinate length of the record in what should have been a very simple case.
1. The facts of this case are fully set out in the judgment of the learned trial Judge. The minor Bai Nirmala gavri was born on December 29, 1910, and is nearly fifteen years old now. The petitioner Navanitlal was married to her in May 1922. The girl admittedly lived in the petitioner's house in February and March 1923. Thereafter disputes arose between the girl's father Purshottam Hurji and the petitioner's father in reference to certain business matters, The result was that the girl having gone to her father's house in or about March 1923, he refused to send her back to the petitioner.
2. After a careful examination of the facts disclosed in the case the learned Judge recorded his conclusions in these terms:-
The minor's father tried to make out that the girl had been treated badly and cruelly, that the petitioner kept bad company, had tried to assault the father and the brother of the minor and had created a row, and that he had threatened to marry again, although he knew very well that the girl was in a delicate state, had not attained puberty and was not fib to perform marital rights. The petitioner has denied all the allegations. I believe the denial of the petitioner and I wholly disbelieve all the statements of the father. I have not the slightest doubt in my mind on the facts as disclosed in the affidavits and on the answers given by the father to me, that the father is actuated by malice against petitioner's father and that he is culpably indifferent to the interest of his minor daughter. He does not care what may happen to her in future. His sole object is to wreak his vengeance on the petitioner for the differences in business matters between the petitioner's father and himself.
3. These conclusions are amply warranted by the record of this case. The learned Judge, however, was of the opinion that in these days the Court would not be justified in ordering a fully developed girl who is able to understand her own interest, to go and live with her husband so as to enable the husband to exercise his marital rights against the wishes of the girl. he does point out that the consequences to the girl are very serious. He says:-
She cannot get a divorce or dissolution of marriage. The husband is free to marry as many other wives as he chooses. In this case the petitioner baa] very good ground for marrying another wife, if he could get one. He has been, in my opinion, very badly treated by his father-in-law and his wife. The wife under the influence of her father refused to go and live with him as she ought to do. The wife cannot blame the petitioner if he goes and marries another wife and discards her for ever.
4. Then he says :-
In the view I bake of the law, I am constrained to dismiss the petition.
5. I regret, in the circumstances of this case, I cannot agree to that order. On the evidence adduced in this case and on the findings of the learned Judge, there are no special circumstances such as would absolve the wife from the obligation of living with her husband, and her father from the duty of surrendering her to her huaband. By the Hindu law, the father is the natural guardian of his children; he is entitled to the custody of their person, and is bound to protect their interests until they attain majority. This, however, is subject to the rule that after marriage, the custody of an infant wife belongs to her husband and not to her father.
6. 'As a rule, in the Hindu law, the state of women is one of perpetual tutelage. ' Their fathers,' says Manu, 'protect them in childhood; their husbands protect them in youth; their sons protect them in age: a woman is never fit for independence.' Youth in this text is explained by Kulluka to mean coverture. The same rule is laid down by other sages, and adopted by authoritative commentators, such as Vijnaneswara and Sul-pani. Accordingly, after marriage, a woman, whether a major or a minor, comes under the protection and guardianship of her husband.' (Dr. Banerjee's Hindu Law of Marriage and Stridhana, 4th edition, p. 116). In Kateeram Dokanse v. Mussamat Gendhense (1875) 23 W.R. 178 Markby J. observed (p. 178):-
The marriage of an infant being under the Hindoo law a legal and complete marriage, the husband, in my opinion, has the same right as in other cases to demand that his wife shall reside in the same house with himself. I do not think that any Court can deprive the husband of this right except upon some tangible and definite grounds, which show that, under the special circumstances of the case, the wife is absolved from this duty, and her parents or guardians from the duty of surrendering her to her husband; and we cannot, in my opinion, say, without contravening the Hindoo law that infancy of a wife constitutes such a ground, though it might, I think, be right in the case of a very young girl to require the husband to show that she would be placed by him under the immediate care of some female member of his family.
7. This view was accepted in Surjamoni Dasi v. Kali Kanta Das I.L.R. (1990) Cal. 37 . The Guardians and Wards Act, 1890, protects the rights of husbands who, by the personal law to which the minor is subject, are entitled to guardianship (Section 19.)
8. In the circumstances of this case it seems to me that it is both in accordance with law and for the welfare of the minor that we should make the order which is proposed by my lord the Chief Justice.