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Monijan Bibi Vs. District Judge Birbhum - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal1,(1915)ILR42Cal351
AppellantMonijan Bibi
RespondentDistrict Judge Birbhum
Cases ReferredSubhadra Koor v. Dhajadhari Goswami
Excerpt:
mahomedan law - marriage--minor--guardian for marriage, functions and position of--marriage of minor ward, necessity of consent of court for--functions of court in such cases--procedure to be followed by the guardian for marriage of mahomedan infant-guardians and wards act (viii of 1890) sections 4(2), 24, 25, 28, 41, sub-section (1) clause (d), 42 sub-section (1), 47 clause (a)--practice--order of district judge not appealable. - .....person and property guardians had been previously appointed by him. on the 12th february 1910, the district judge appointed the mother of the infant as guardian of her person and the nazir of the court as the guardian of her properties. the order however, was not communicated to the nazir, and he does not appear to have had any hand in the management of the estate, till quite recently, when the fact was discovered chat the nazir had never been apprised of his appointment. the proceeding now before us was initiated on the 22nd may 1912, when an application was made to the court by the mother and by another person who claimed to be the half-brother of the father of the infant, for directions as to a suitable marriage of the girl. objection was taken by a cousin of the father of the infant,.....
Judgment:

Mookerjee and Beachroft, JJ.

1. We are invited to met aside, in the exercise of our appellate or of our revisional jurisdiction, an order, which purports to have been made by the District Judge under the Guardians and Wards Act, for the marriage of a Mahomedan girl, in respect of whose person and property guardians had been previously appointed by him. On the 12th February 1910, the District Judge appointed the mother of the infant as guardian of her person and the Nazir of the Court as the guardian of her properties. The order however, was not communicated to the Nazir, and he does not appear to have had any hand in the management of the estate, till quite recently, when the fact was discovered chat the Nazir had never been apprised of his appointment. The proceeding now before us was initiated on the 22nd May 1912, when an application was made to the Court by the mother and by another person who claimed to be the half-brother of the father of the infant, for directions as to a suitable marriage of the girl. Objection was taken by a cousin of the father of the infant, who intimated to the Court that the selection of a bridegroom as made by the applicants was entirely unsuitable. The District Judge thereupon directed the attendance of all near relations of the girl, and also ordered the girl to be produced in Court if the mother had no objection. On a later date, the girl was brought before the Court; the District Judge then directed his Nazir, Babu Saradindu Chakravarti, a Hindu gentleman, to go to the village and after consultation with persona interested in the welfare of the minor, to submit a list of likely bridegrooms, stating their qualifications and position in society and making his recommendation with reasons. Objection was taken by the mother and the alleged uncle to the adoption of this course on the ground that it involved a supersession of the person entitled under the Mahomedan law to act as the guardian for marriage. No heed was paid to this, and on the 16th August, the Nazir submitted, his report. On the 27th September, the girl was produced again before the Court and she expressed her preference for a young man named Ishak. On the 4th October, the District Judge further considered the matter, and although he came to the conclusion that the Court could not undertake to perform the functions of a match-maker, he called upon the mother to nominate three of the young men mentioned in the report of the Nazir. On the 6th December, the District Judge recorded in the order sheet that the mother had failed to comply with the order of the 4th October, and he accordingly proceeded to select a suitable husband for the girl on the basis of the report submitted by the Nazir. This order is assailed before us as made without jurisdiction. In our opinion, the proceedings before the District Judge have been throughout irregular.

2. The Guardians and Wards Act does not make specific mention of the disposal in marriage of an infant in respect of whose person a guardian, has been appointed by the Court, although Section 41, Sub-section (i), Clause (d), provides that the powers of a guardian of the person cease in the case of a female ward by her marriage to a husband who is not unfit to be guardian of the person, or if the guardian was appointed or declared by the Court, by her marriage to a husband who is not in the opinion of the Court so unfit. The term 'guardian' is defined in Section 4, Clause (2) to mean a person having the care of the person of a minor or of his property or of both his person and property. Section 24 then prescribes the duties of a guardian of the person in these terms: 'A 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', It Is remarkable that while the Legislature makes specific mention of support, health and education, no reference is made to the marriage of the minor. If we assume that the individual who has by law the right and duty of disposing of a boy or girl in marriage may be said to have for that limited purpose the care of his or her person, the question remains whether 'disposal in marriage' can be treated as included in the general words, 'such other matters as the law to which the ward is subject requires', which find a place in the concluding portion of Section 24, The answer must plainly be in the negative in the case before us; we need not express any opinion as to what the answer may be in cases where the parties are not Mahomedans. In the first place, under the Mahomedan law, which applies to the parties before the Court, the guardian of the person of an infant is not necessarily the guardian for the marriage of the girl. In the second place, the Mahomedan law does not require that the guardian should provide suitable marriage for his ward, though it gives him the power to contract a marriage' for the infant. The Mahomedan law does not impose upon guardians any religious obligation to provide suitable marriages for their wards; indeed, their power is so restricted that, where a minor has been given in marriage by a guardian other than the father or paternal grandfather, the minor has what is called the option of puberty, or option of repudiation, on attainment of age. We have, therefore, two fundamental positions under the Mahomedan law, namely, first, the right of giving a male or female minor in marriage falls upon a line of guardians different from that to which the management of his property is entrusted and also from that to which the; custody of the person is confided; and, secondly, that although the intervention of a guardian is an essential condition to the validity of the marriage of a minor, it is not obligatory upon the guardian of the person, nor even, upon the guardian for marriage, to provide a suitable marriage for the ward [Macuaghten, Chapter VII, Articles 14, 16; Baillie, Book I, Chapter IV, page 45; Hamilton's Hedayah, Volume I, Book I, Chapter II, pages 36, 37 and 39; Ameer Ali, Volume II, pages 280-582 (third edition); Shama Charan Sirear, Volume I, page 329; Abdur Kahman, Articles 34-37 and 41 and 42; Ahdur Rahim, page 331]. It cannot reasonably be hold that the Mahomedan law, on the subject of guardianship in marriage, has boon abrogated by implication by Section 24 of the Guardians and Wards Act. One would have expected to find a specific statutory provision to this effect if the Legislature really intended to interfere with the rule of Mahomedan law which assigns the function of guardianship in marriage of an infant, under the name of jabr, to relatives who are not necessarily those entitled to the general care and direct custody (hizanat) of the person of the infant. The view we take is supported by the opinion of Sir Roland Wilson (Anglo-Mahomedan Law, Articles 90 and 117.).

3. The question next arises, What is the true function of the District Judge in the matter of the disposal in marriage of a Mahomedan minor in respect of whose person a guardian has been appointed by him? We are not prepared to accept the extreme view that the marriage of an infant, who is a 'ward of Court may be allowed to take place without the sanction or even the knowledge of the District Judge, although such view appears to have been indicated in Bai Diwali v. Moti Karson (1896) I. L. R. 22 Bom. 509. It would, we think, be contrary to first principles to hold that, although a minor is a ward of Court, an obviously unsuitable marriage may be arranged for her, while the Court is powerless to prevent what would manifestly be an irrevocable act permanently injurious to her best interests for life. If this view were not maintained, grave complications might also arise, because under Section 41, Sub-section (1), Clause (d), the powers of the guardian of the person cease, when such guardian has been appointed or declared by the Court, only when the marriage has taken place with a husband who is not, in the opinion of the Court, unfit to be guardian of the person of the girl. This clearly indicates the desirability, if not the absolute necessity, of the sanction of the Court, before the marriage is arranged and solemnised. We hold accordingly that a ward of Court cannot marry without the consent of the Court. This indeed has been recognised as an elementary principle in the law of England [Eyre v. Shaftes-bury (1722) 2 P. Wms. 103, 112. Jeffrys v. Vanteswarstwarth (1740) Barn. CH. 141, 144, Tombes v. Elers (1747) 1 Dick. 88, and it has been repeatedly held that if a proposed marriage is unsuitable, the Court can, as representing the Sovereign in whom the guardianship of all infants is, in theory, vested, restrain the marriage, even though the guardian or the father has given his consent: Gordon v. Irwin (1781) 4 Brown P. C. 355 Wellesley v. Beaufort (1827) 2 Russ. 1, 29. affirmed by the House of Lords Wellesley v. Wellesley (1828) 2 Bligh N.S. 124, 1 Dow & Clause N. S. 152. This view was accepted as applicable to the case of a Hindu minor for whom a personal guardian has been appointed by the Court, in Subhadra Koor v. Dhajadhari Goswami (1911) 15 C. L. J. 147, where it was ruled that marriage or connivance at marriage with a ward of Court, without consent of the Court, is a contempt of Court liable to be severely punished.

4. The proper procedure to be followed in cases of this description may now be briefly described. The guardian for marriage of the infant, who may have negotiated for the marriage, must apply to the District Judge for his sanction. Notice of the application should be 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 age, 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.

5. The order of the District Judge in the case before us, tested in the light of the principles just explained, is clearly unsustainable. No doubt, at one stage of the proceedings he rightly took the view that it is not the function of the District Judge to act as a matchmaker, but at a later stage he adopted measures quite contrary to the principle he had laid down. There was also a dispute before him as to who was entitled under the Mahomedan law to act as guardian for the marriage of the minor. This he did not decide as he should have done, but superseded both the claimants, appointed his Nazir to hold an enquiry in the village and to make a preliminary selection of possible bridegrooms, and Anally called upon the mother to select three from amongst the persons named by the Nazir. When the mother, who was apparently treated as the guardian for marriage, could not make the selection, apparently for the reason that she did riot consider any of the young men named by the Nazir quite suitable, the District Judge proceeded to make his own choice. This was clearly an irregular procedure. It is difficult to see why the choice should be restricted to young men of the particular -village, and why the guardian for marriage should be limited to the preliminary list of possible candidates prepared by the Nazir. The choice has to be made in the first instance by the guardian for marriage, whoever he may be, and the true function of the District Judge is to test whether the selection made by the guardian for marriage is or is not suitable. The District Judge does not appear to have realised what responsibility would be involved, if he had, with or without the assistance of his Nazir, to select the most suitable bridegroom or bride, as the case might be, for every infant in the district in respect of whose person a guardian might have been appointed by him- Nor did the District Judge realise that, while under the Mahomedan law none but a Moslem can act as the guardian for marriage of a Mahomedan minor, the procedure he has followed has led to the supersession of such guardian by a Hindu gentleman, who prima facie would not have an intimate knowledge of what would be deemed suitable in Mahomedan society.

6. The only other question which requires examination is whether the order of the District Judge is open to appeal. We are of opinion that Section 47, Clause (1) of the Guardians and Wards Act, read with Section 43, Sub-section (1), and sections 24, 25 and 26, does not cover the case; consequently the order is not open to appeal and can be set aside only in the exercise of our revisional jurisdiction.

7. The result is that the appeal is dismissed but the Rule is made absolute, and the order of the District Judge discharged. The records will be returned to him to enable him to take such further steps, if any, as the parties interested may desire him to adopt in accordance with the principles explained above.


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