Sankaran Nair, J.
1. This is an application under Section 491, Criminal Procedure Code, in the nature of a writ of habeas corpus by a father for the custody of his two daughters in their 14th and 16th years respectively.
2. On reading the affidavits it appeared to me that the case is one which ought to be decided on sworn testimony. I accordingly directed the parties to examine witnesses. These are the facts.
3. The petitioner who calls himself Swami Vidhyananda Paramahamsa alias T.S. Muthuswami Sastri is a B.A. of the Madras University and was a tutor in the Madras Christian College from 1892 to 1899, drawing a pay which ranged from Rs. 35 to 65. Before 1889, he had pledged himself that he would not marry his daughters before their 16th year. His wife had English education in the Training School and was a teacher in the Vijianagaram Rajah's Girls School. In 1895, while a tutor, the petitioner donned the yellow robe. In 1899 he went to Sringeri to become as anyasi. From there he wrote Exhibit II to his brother Narayanan, with whom his daughters are living and who opposes this application. He resigned his appointment in the Christian College to become a Sanyasi. He writes in Exhibit II : Now you are wise, experienced and gentle. I therefore give the whole family burden to you. The children are all yours, the books and furniture are yours. I make you a complete Manager * * Out of family dignity I would ask you to support the renounced family completely from your income.* * Do not write to me anything about the private affairs of the family.' There can be no doubt that his wife did not like this. A few months after, in November, 1899 Narayanan from Madras wrote to him that she was refusing to receive any help from him and said she did not want any help at all. He wrote that they were not on friendly terms on account of his refusal to receive the mother-in-law into the house. He states that for one month he supplied every thing she wanted and would do so again willingly if she would allow him. He wrote he would help his brother the petitioner also. So far as the sons are concerned, Narayanan took charge of them from 1900. They have been living with him ever since, and were educated by him. The eldest boy is now 21 or 22. The petitioner came to Madras and became a Sanyasi at Tiruvottiyur in 1901, obtaining the consent of his wife, which he says was given on condition that he would not renounce the duties of a husband. His father died in 1901. He left it to his brother Narayanan to perform the usual ceremonies in the ordinary way. He did what a Sanyasi does on such occasions, bathe with the clothes he was then wearing. From June 1901 to June 1902 he travelled in the Madras Presidency. He spent the rest of 1902 and the whole of 1903 in Northern India and returned to Madras only at the end of the year. A photo of his taken during this trip is Exhibit IV, filed to show he was then a Sanyasi. Till March 1905 he lived at various places in Madras but not with his wife and children, whom he admits he did not maintain and who, Narayanan says, were maintained by him. He was suffering from fever for four or five months when he says his wife asked for the favour of an interview with him which he was pleased to grant. From that time she was visiting him occasionally but did not live with him. He also says that the eldest son who must have been then below ten, stayed with him and cooked his meals for him. In March 1905, he went to the Circars for about 6 months to collect subscriptions for a press, leaving his wife and daughters in the house. He returned in about November 1905 and after that period to her death, according to himself, she permanently lived with him, though according to his brother such permanent residence was only from 1906. Early in June 1906 his mother died; he refused to perform the funeral ceremonies as he thought that Narayanan, who had become the eldest son in the family, by his own renunciation of that place which was his by birth, was the proper person. On the nth of that month he wrote 'as a self-adopted son of Mother India' a characteristic letter to Narayanan, in which he assured him, 'I went away from the bodily mother in order I might serve Mother India' and that he was one of the best of their race and that Narayanan ought to be proud of him as the only 'Sanyasin product' of the Madras University and 'calls upon' Narayanan to honour his mother's memory with a contribution of Rs. 15 a month towards the maintenance of the press, which, he says, is for the improvement of the vernacular literature. The evidence does not show what the reply was. Though he did not attend the funeral ceremonies, his wife attended, without asking him as he says in such matters she did not take his consent. It is probable he was displeased with her treatment as she took away the daughters who were till then living apparently with Narayanan. Within a few days after this, 16th June 1906, the petitioner signed the covenant and became a Brahmo. His wife did not sign the covenant. But it is probable that to please him she lived a Brahmo life. Till September 1908 his daughters continued to live with him. His sons were with Narayanan. He wanted Narayanan to send them to him. Narayanan says he left it to them to do what they liked. But it may be inferred that he was not willing to send them and the petitioner says that his wife dissuaded him from taking any legal steps. In 1908 his eldest daughter ran away to her uncle Narayanan's house, as she hoped that he would get her married. The petitioner brought her back and to prevent any further attempts placed her in a home at Poona in September 1908. The second daughter also was taken there in January 1909. His wife went to Poona in September 1909 and brought them away without obtaining the consent of the petitioner and against his wish. The petitioner states that the reason was that it was a hard life his daughters were leading there. The evidence on the other side is that they wanted to get them married; after this they lived together. But according to the daughter, the petitioner, cooked his own meals, and they cooked their meals separately, though they lived in the same house. This is denied by the petitioner. The evidence on either side to corroborate this is not of much matter. The wife and children lived with the petitioner till April 1910, when the wife went to the Maternity Hospital. She died there. Between 1906 and 1910, the petitioner and his wife lived as husband and wife and she bore him children. On her death, the petitioner states that he performed the memorial service in Brahmo form. Narayanan was not in Madras on the day of her death and, therefore, a priest was engaged the first day. On the second day he arrived and the ceremonies were thenceforward carried out in the orthodox Brahmin style.
4. There is no doubt that from 1906 to 1910 while his wife and daughters were with him, he was earning enough to maintain them, but it is also proved beyond doubt that she underwent great privations. Besides the evidence of witnesses on either side, who prove payment of small sums of cash and their1 supplying them with necessaries like rice, there is the strong evidence furnished by Exhibit I, a memo left by her on her death, which shows that she pledged even her Tali, marriage symbol, for 8 annas. A married woman will, of course not do this unless in very dire straits. She tells her children, in this memo, not to tell their father of this, and it is evident from his distress in the witness box when he read this that it came to the petitioner as a painful surprise. My conclusion on this point is that he was so absorbed in his divine mission, the service of 'Mother India', that though he earned sufficient for their living, he did not give her enough and that she bore everything in silence, trying as best as she could in various Ways to make both ends meet. The object of petitioner is to prevent the marriage of his daughters before they complete their sixteenth year. His brother and other relatives apprehend that if the girls are not married before they attain age, they may be put out of caste or they may find it difficult to get them married, and if the girls return to the father who is a Sanyasi and was living with his wife there might arise further difficulties.
5. I think the petitioner is quite free to keep his daughters unmarried till their 16th year or even after that age even though he may put his daughters not only to great inconvenience but to the danger of excommunication.
6. The fact that he has become a Brahmo does not affect the matter. He will not thereby lose any rights be had before. Leaving out of consideration for the present his living with his wife, there is nothing proved against his character. He seems to be a man of strong convictions, who is acting upon them, sacrificing his wordly prospects, who has consecrated his life to what he regards his holy mission in life and will not allow on that account the material interests of his wife and children to stand in the way. He wants his daughters to be brought up according to his own views.
7. None of his relatives, his brothers, brother-in-law, etc., share his views. They retain their old faith and strictly orthodox ideas in their completeness. His wife was an educated lady herself. She led an uncomplaining, silent and hard life from 1900 to her death. She had undoubtedly a will of her own. She brought away her daughters from Poona. Her husband admits that she would not take his consent for such things as attending funeral ceremonies, etc. She attended his mother's funeral without his leave, and she persuaded him to leave her three sons with Narayanan and on her deathbed practically advised her daughters to leave their father and live with Narayanan.
8. In these circumstances there is no question of morality or corruption to influence my decision. If the petitioner retained his right of custody when he became a Brahmo, the daughters must be placed in his custody, as nothing has happened since to deprive him of that right. Whether he had such rights then is the question for determination. His declarations in his letter Exhibit II already extracted, the resignation of his appointment in the Christian College, his renunciation of his position as the head of the family by giving up the family lands to Narayanan, his entire and otherwise inexplicable and very reprehensible abandonment of his wife and children till 1905, his wanderings throughout the country, when he was photographed as a Sanyasi, his discarding the sacred thread, taking a new name, the ceremony of his initiation, and his conduct on the deaths of his parents when he declined to perform the funeral ceremonies on the ground that he is a Sanyasi and Narayanan who has become the eldest son on account of his renunciation is the proper person to perform them, living the life of a Sanyasi, apparently lead only to one conclusion. He insists himself that he has become and is still a Sanyasi. His own statement is remarkable: 'While I admit that I have been wearing a kashaya garb, I deny I am a Sanyasi m the ordinary acceptation of the term. I took up the Smyasa with my own interpretation of the prescribed formulae to a sympathetic priest that I chose, and who was fully apprised of my views and motives, and I feel bound only by that interpretation. I am not a total innovator in this matter but an imitator of religio-social labourers like Sankara, Ramanuja and Madhwa who put what interpretation they chose upon the Vedic text. My object, has always been to effect religious and social amelioration according to the best of my lights.'
9. He has not given in his evidence his own interpretation of the formulas to show that the ordinary legal consequences should not follow from his having become a Sanyasi. But it is clear from Exhibit II and his conduct during the subsequent years that such peculiar interpretation has nothing to do with the question now under consideration whether he his ceased to belong to his natural family.
10. Mr. Narayana Row contends that he is not Sanyasi and relies upon two facts ; first, he has been made a Sanyasi by Mr. Subramaniem, Assistant Professor in a college; secondly, he was living with his wife. When Mr. Subramaniem was in the witness box, his qualifications or disqualifications for making one a Sanyasi, weie not elicited. I am prepared, however, to assume that not being himself a Sanyasi, he was not competent to initiate the petitioner into the Sanyasi Asramam. But I have very little doubt that the petitioner himself wad in real earnest and acted in good faith. He still maintains the validity of his initiation.
11. To hold otherwise would be to make him an out-cast and I am not prepared to decide so when he himself earnestly states he is a Sanyasi and the opposite side does not raise the question. It is also true that he lived with his wife in 1905 or 1906. But he did so, not because he was not a Sanyasi but on account of the promise he had to make, to get her consent. It can only be treated as a violation of his Sanyasi Asramam I must therefore hold that he was, what he himself says he was, a Sanyasi and he, therefore, was not in 1906 when he became a Brahmo, the guardian in Hindu Law of his children.
12. There is undoubtedly the strong circumstance in his favour that he was their de facto guardian from 1901 till his wife's death. Such de facto guardianship is sufficient to sustain a prosecution under Section 361, Indian Penal Code, and as against strangers would entitle him to an order for restoration to his custody under Section 491, Criminal Procedure Code.
13. It was then suggested that though he may have lost his rights when he became a Sanyasi it was open to him to resume them. I do not think so. The ordinary rule of Hindu Law is that rights once vested are not divested and he does not regain his status in the natural family he has renounced.
14. In these circumstances, I have now to see what order I should pass under Section 491, Criminal Procedure Code. No rules have been passed under Section 491(2) to regulate the procedure. I have found that the children have not been illegally or improperly detained. So Section 491(1)(6) does not apply. I have, therefore, to pass orders under Clause (a). I find then that the petitioner has not proved his right to the custody of his daughters; their adult brothers are living with Narayanan who has educated and brought them up; that there is no allegation that they are not likely to be well treated by him; their mother on her death-bed was willing that they should live with him. After their father, their brothers and Narayanan are their nearest relations who are in possession of the little family property they have.
15. On these facts, I am not prepared to grant the prayer that the daughters should be restored to his custody and, rejecting that part of the application, direct that the girls be informed that they are free to go where they like - to their father, uncle, or brothers.
16. Application rejected.