Venkatasubba Rao, J.
1. This is an application made under Section 491 of the Criminal Procedure Code. It is in the nature of an application for habeas corpus. The applicant is the mother of the girl who is said to be illegally detained. There was some dispute as regards the age of this girl, and there was conflicting medical testimony on the point. But Mr. A. Krishnaswami Aiyar who appeared for the girl as well as for her step-sister (from whose custody the minor girl was produced) agreed to proceed with the application on the footing that the age of the girl was a little over 17 and under 18. The parties belong to a wealthy Gramani family residing at Kodambakkam outside the Municipal limits of Madras. The members of this family have shown themselves extremely litigious and repeated applications have been made before this Court from time to time in regard to disputes that have arisen between them. It is unnecessary to go into these various matters, because the more essential of the facts can be brought within a very small compass. The applicant left the family house or was compelled to leave it about a year or two ago, and the girl has been continuing to live with her step-sister. Arrangements were recently made to give the girl in marriage to her paternal aunt's son who is also a respondent to this motion, and the mother thereupon applied for a writ to Devadoss, J. who was the Vacation Judge and an interim order was made for the production of the minor as well as restraining the marriage. I must mention that the step-sister has shown herself to be a person of very strong will and that the mother, on the other hand, is liable to be easily led away. I have examined the minor herself with a view to ascertain her own wishes in the matter. She is a full-grown girl and is resolute and self-willed. She expressed her wishes very strongly and stated to me that she would not return to her mother and that she was determined to marry the young man to whom her mother objects. The only relevant allegation made against him is that he is not possessed of any property worth mentioning. He is employed as a Proof Reader in the Government Press and gets a pay of about Rs. 25 a month. He looks healthy and strong, and the girl herself, as I have observed, has a decided preference for him.
2. The short question to be decided is, has a case been made out for the issuing of directions in the nature of habeas corpus? It has been repeatedly held in England that the main consideration which ought to weigh with a Court of Chancery is really the question of the welfare of the child. The jurisdiction arises from the power of the Crown delegated to the Court of Chancery and it is essentially a parental jurisdiction, and it is to be exercised for the benefit of the infant. It is also settled law that the word ' welfare ' must be taken in its widest sense. The moral and religious welfare must be considered as well as its physical well-being, and due regard must be had to the ties of affection. With reference to all the circumstances of the case the Court makes an order; they relate to the position of the parent, the position of the child and the happiness of the child. There can be no question that this is the law that is administered by a Court of Chancery in England. The Courts in India act on the same principle, and the Guardians and Wards Act (Act VIII of 1890) recognises that the rules that guide the Court of Chancery are applicable in this country. Section 17 enacts that the Court shall be guided by what appears in the circumstances to be for the welfare of the minor, and where the minor is old enough to form an intelligent preference, it is further enacted that the Court may consider that preference.
3. A question of law has been raised and as I consider it to be of great importance I proceed to deal with it. The basis of habeas corpus is illegal restraint. If the person that is alleged to be illegally detained is an adult, the case presents little difficulty because he appears before the Court and says either that he has been wrongfully detained or that there has been no wrongful detention. But in the case of a minor he cannot be said to be capable of giving consent, and detention against the wishes of a lawful guardian is prima facie illegal. The consent to which the Court must thus refer is the consent of the guardian and not that of the infant. If therefore the de jure guardian applies for habeas corpus in respect of a child. detained against his will what are the considerations which must guide the Court in determining the rights of the parties I have said that the question of the interests and the welfare of the infant is the dominant question, and the Court must dispose of the application with reference to it. But it is argued by Mr. A. Krishnaswami Aiyar that in the case of a boy over 14 and in the case of a girl over 16 the Court has no option in the matter and that the wishes of the infant must be given effect to. He puts his argument in this way. The application deals with the liberty of a subject. If the infant is of an age to exercise a choice or use a discretion and the infant declares to the Court that he is not in unlawful custody, the Court is bound to make no further order than merely to declare him at liberty; only where the person is too young to be competent to choose, the Court makes an order giving the custody to the lawful guardian. The next step in his argument is, that the right to such an election depends upon age and age alone and not on mental capacity. In support of his proposition he chiefly relies upon Queen v. Howes 3 El. & E. 332 : 121 E.R. 467, In re, Andrews 8 QB 153 and the observations of Brett, M.R. in In re, Ayar Ellis 24 Ch D 317.
4. In Queen v. Howes 3 Ellis & Ellis 332 : 121 E.R. 467, Cockburn, C.J. thus observes:
The whole question is, what is that age of discretion We repudiate utterly, as most dangerous, the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion; for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The Legislature has given us a guide, which we may safely follow, in pointing out sixteen as the age up to which the father's right to the custody of his female child is to continue; and short of which such a child has no discretion to consent to leaving him.
5. The ratio decidendi would appear to be applicable to cases arising in India, as corresponding to the English Statutes which fix the age, there is the provision of the Indian Penal Code, Section 363, which makes it penal to entice a minor under 14 years of age if a male or under 16 years of age if a female.
6. In In re, Andrews 8 QB 153, Archibald, J. makes the following observations :-' The right to such an election, it has been clearly decided, depends upon age alone, and not on mental capacity see Reg. v. Clarke 7E & B 186; and it may be taken as settled that no such choice can be made, at all events by a female infant under the age of sixteen; Rex. v. Howes 3 E & E 332 followed by the Court of Probate and Divorce, in the case of Cartlidge v. Cartlidge 2 Sw & Tr 567 : 31 LJ 85 and Mallinson v. Mallinson LR IP&M; 221. ' It will be convenient to set out in extenso the observations of Brett, M.R. in In re, Agar-Ellis 24 Ch D 317 which have been strongly relied on.
It is the universal law of England that if any one person alleges that another is under illegal control by anybody that person, whoever it may be, may apply for a habeas corpus and thereupon the person under whose supposed control, or in whose custody, the person is alleged to be illegally and without his consent, is brought before the Court. But the question before the Court upon habeas corpus is whether the person is in illegal custody without that person's consent. Now up to a certain age children cannot consent or withhold consent. They can object or they can submit. But they cannot consent. Because the Court cannot inquire into every particular case, the law has now fixed upon certain ages, as to boys the age of fourteen and as to girls the age of sixteen, up to which as a general rule the Court will not inquire upon a habeas corpus, as between the father and the child as to the consent of the child to the place wherever it may be. But above the age of 14 in the case of a boy, and above the age of 16 in the case of a girl, the Court will inquire whether the child consents to be where it is; and if the Court finds that the infant no longer a child, but capable of consenting or not consenting, is consenting to the place where it is, then the very ground of an application for a habeas corpus falls away.
7. With reference to Mr. A. Krishnaswami Aiyar's argument it is necessary to examine whether the passages extracted above express the Law of England correctly on the point. In Queen v. Gyngall (1893) 2 QBD 232 which related to an application for habeas corpus in respect of a female infant aged 15, the Court of Appeal refused to give to the mother of the minor custody although she had not been guilty of any misconduct. The child in that case, although she was a female infant under sixteen, was examined and the Court inquired into her wishes. Kay, L.J. refers with approval to Ex parte Hopkins 3 P & Wms 151 which related to three girls, the eldest of whom was only thirteen, whom King, Lord Chancellor questioned to ascertain her own wishes. The observations of Brett, M. R. in In re, Agar Ellis 24 Ch D 317 to which I referred are set out in the judgment of Kay, L.J. who proceeds thus:
This language, of course, had reference to the case of Reg. v. Clarke 7 E & B 186 in which the application being for habeas corpus before the Judicature Act and the child in question being a girl and under sixteen, Lord Campbell, C.J. said that in the course of common law such a child being deemed incapable of consenting he would not inquire into the wishes of the child. I have already shown by reference to the case of Ex parte Hopkins 3 P & Wms 151 that there never was any such rule in the Court of Chancery. ' In the same case Lord Esher, M. R. referring to Reg. v. Clarke 7 E & B 186 says :-' It appears to me that that ruling was quite correct. That case is no authority for the present where a different jurisdiction comes into play. ' Both Lord Esher, M. R. and Kay, L.J. refer to the passing of the Judicature Act and clearly lay down that the decisions prior to that Act are not authorities for cases arising after the passing of that Act. If in the light of these remarks one turns again to In re, Andrews 8 QB 153 one cannot fail to notice that the decision rests upon the authority of Reg. v. Clarke 7 E & B 186 which the Court of Appeal refused to follow in Queen v. Gyngall (1893) 2 QBD 233 on the ground that it was no longer applicable after the passing of the Judicature Act. Kay, L.J. refers in this connection to a child being of a reasonable age and says that the Court would hardly then desire to determine the question without seeing and speaking to the child and ascertaining its wishes on the matter. This expression of opinion is hardly consistent with what Cockburn, C.J. said in regard to intellectual precocity of any particular individual.
The subject is considered again in In re, Harriet O'Hara (1900) 2 IR 232. Fitz-Gibbon, L.J. summarises the principles deducible from the judgments of Lord Esher and Kay, L.J. in Gyngall's case (1893) 2 QB D 233) and repudiates the suggestion that the girl in question there ought not to have been consulted because she was only 11 years of age. He thus observes :--' I entirely dissent from this contention. From the time of King Chancellor in Ex parte Hopkins 3 P & Wms 151 the Court of Chancery has exercised its discretion in seeing the young children not for the purpose of obtaining their consent but for the purpose and as one of the best modes of determining what is really for their welfare though the Common Law Courts as a general rule would not inquire as between parent and child as to the child's consent below the age of 14 for a boy or 16 for a girl.
8. I think I have made it fairly clear that the hard and fast rule which Mr. Krishnaswami Aiyar asks me to accept does not obtain at the present day in England. I have been referred by Mr. Krishnaswami Aiyar also to Simpson on Infants, 3rd Edn., page 188 and Short and Mellor's Practice of the Crown Office, 2nd Edn., page 313. But the learned authors rely upon cases decided before the passing of the Judicature Act and I cannot therefore act upon the passages to which my attention has been drawn.
9. In each case the Court must decide with reference to the interests and the welfare of the minor. If an infant capable of forming an intelligent opinion expresses its views, the Court is bound to take them into consideration. In weighing the question what is for the benefit of the child, this will form an important element and the degree of the child's mental development must to a certain extent weigh with the Judge in deciding how far its wishes shall be given effect to. In the same way, the age of the child is also an important factor. It seems to me that the rule that fixes an inflexible limit in regard to age is too artificial and even if the contention is correct (which in my opinion is not) that such a rule obtains in England, I am emphatically of opinion that there is no warrant for the extension of the doctrine to India where different considerations may apply and different conditions do prevail.
10. In Pollard v. Rouse ILR (1910) M 288 Wallis, J. (as he then was) thus observes at page 293:-' Lastly it is well established that the Court will not ordinarily force a minor of more than 14 if a boy, and of more than 16, if a girl, to remain in custody to which he or she objects. ' It is urged by Mr. Krishna-swami Aiyar that Wallis, J. by qualifying his statement by the use of the word ' ordinarily ' has failed to correctly set forth the effect of the English decisions. It is doubtful whether Wallis, J. brought his mind to bear upon this particular aspect of the question because at page 298 there occurs in his judgment the following passage inconsistent with his earlier observation :-'As regards the girls over 16 and boys over 14 it is now conceded in accordance with the principles I have explained that the Court cannot in the present case force them to return to the plaintiff against their will. ' It seems to me that this case cannot be of much value as an authority upon this particular point.
11. In In re, Saithri ILR (1891) Bom 307, a minor, Baguley, J. points out in a judgment which refers to various authorities that it is not right to apply the very artificial rule to which reference has been made.
12. I have therefore looked at the question purely from the point of view of the welfare of the minor. I have paid necessarily, as any Court will pay, great attention to the expressed wishes of the infant who will soon reach the age of 18, the age of majority. She is in a position to decide for herself and she expresses a decided preference to remain in the custody from which she has been produced. She is able to form a judgment as to what is in her own interest and for her benefit. She has freely chosen to give her hand in marriage to her paternal aunt's son. It is also not impossible that she has been on terms of friendship and familiarity with this young man and it is not desirable to take her away from the surroundings to which she has been accustomed and to place her in the custody, against her will, of her mother who is a woman not of strong will and easily capable of being influenced by the person who at the time happens to be nearest to her; and it is necessary and important to bear in mind that the mother is not being deprived of the custody of the infant but on the contrary I am asked to take the child away from the custody which she prefers and place her in the custody of the mother to whom she expresses a positive dislike.
13. The order that I propose to make therefore is that she be freed from all restraint and be at liberty to go where she chooses.
14. In the circumstances of the case I make no order as to costs.