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Basanta Kumar Das Vs. Nagendra Nath Pal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1932Cal719,137Ind.Cas.425
AppellantBasanta Kumar Das
RespondentNagendra Nath Pal
Cases ReferredHarendra Nath Chowdhury v. Brinda Bani Dassi
Excerpt:
- .....judge thought that the marriage was not in the interests of the minor child of the appellant. the learned district judge founding on an affidavit made by the said nagendra nath pal issued an ad interim injunction on the petitioner restraining him from giving the girl in marriage. the order sheet on 26th february 1932 shows that notice upon the father, who is the appellant before us, regarding the temporary injunction was served on him. notwithstanding the receipt of the notice, it is said that the father celebrated the marriage of his infant daughter and the district judge has accordingly directed him to be put into the civil jail for disobeying the order.2. this order is attacked before us on two grounds. in the first place, it is said that the order is wholly without jurisdiction as.....
Judgment:

1. This appeal is directed against an order of the District Judge of Backergunj, dated 7th March 1932 by which the petitioner was directed to be put into civil jail for disobeying an order of temporary injunction restraining the petitioner from marrying his daughter on a particular date with a particular person. It appears that one Nagendra Nath Pal who is said to be an agnatic relation of the mother of the girl applied to be appointed a guardian of the person of the minor Srimati Teni Dassi with the object apparently of stopping the marriage: of the said Teni Dassi before her completion of the age of 14 years with one Priya Nath Dutta, son of Bepin Behari Dutta of Kusangal. The marriage, according to the petitioner, was in contravention of the Child Marriage Restraint Act (19 of 1929) and the applicant before the District Judge thought that the marriage was not in the interests of the minor child of the appellant. The learned District Judge founding on an affidavit made by the said Nagendra Nath Pal issued an ad interim injunction on the petitioner restraining him from giving the girl in marriage. The order sheet on 26th February 1932 shows that notice upon the father, who is the appellant before us, regarding the temporary injunction was served on him. Notwithstanding the receipt of the notice, it is said that the father celebrated the marriage of his infant daughter and the District Judge has accordingly directed him to be put into the civil jail for disobeying the order.

2. This order is attacked before us on two grounds. In the first place, it is said that the order is wholly without jurisdiction as the provision of Order 39, Rule 2, Civil P. C,, under which the learned District Judge purported to act has no application to the facts of the present case. Ground 2 taken is that the petitioner-appellant was not given sufficient opportunity for the purpose of establishing the allegation that he did not receive any notice of the temporary injunction before the marriage of his minor child. With regard to the first point, it is said that the proceeding pending before the District Judge was a proceeding for the appointment of a guardian. It was not a suit or a proceeding for restraining the father from committing a breach of contract or other injury of any kind within the meaning of Order 39, Rule 2, read with Section 141, Civil P. C. It seems that the whole object of the application of Nagendra Nath Pal for being appointed a guardian was to prevent what, according to him, was an illegal marriage and contravened the provisions of the Act of 1929. The father by his answer to this application for injunction stated that the girl was above 14 years of age at the date of her marriage and that the statement made by the said Nagendra Nath Pal that the girl was only nine or ten years old was untrue. It is not necessary in the view we have taken of this appeal to decide on the contention as to whether the provisions of Order 39, Rule 2 apply to the circumstances of the present case. As a matter of fact, the learned advocate for the respondent has sought to justify the issuing of the injunction under the provisions of Section 12, Guardians and Wards Act (8 of 189C) and he has relied on a decision of this Court in the case of Harendra Nath Chowdhnry v. Brinda Rani Dassi (1), in support of his contention that it is open to the Court acting under Section 12, Guardians and Wards Act, to issue an injunction at the instance of a person who has applied to be appointed a guardian during the pendency of those proceedings restraining the natural guardian of the minor or the guardian for the purposes of marriage from marrying or allowing the marriage of the minor to a particular person. The learned District Judge apparently has not purported to act under Section 12.

3. It is said on behalf of the appellant that as a matter of fact there was no proceeding pending for the production of the minor and the case in Harendra Nath Chowdhury v. Brinda Bani Dassi [1898] 2 C.W.N. 521 is sought to be distinguished on the ground that in that case there was an application for the production of the minor girl and during the pendency of the application, the order for injunction was bad. Be that as it may, as we have already stated the appeal can be disposed of on ground 2 which has been advanced on behalf of the appellant. It appears that on the question of the service of the notice of this_ injunction, the learned District return that the order for injunction was served on 20th February 1932. The peon apparently has not been examined in this case and the appellant before us contends that he had no sufficient opportunity given him of showing that as a matter of fact! he did not receive the notice of injunction before the marriage. The learned advocate for the respondent has frankly conceded that if this Court is of opinion that the appellant should be given an opportunity for the purpose of establishing his contention that he did' not receive any notice of injunction, he has no objection to an order of remand in order to entitle the appellant to have such an opportunity. Having regard to the fact that the appellant has already suffered civil imprisonment for 10 days we do not think that any useful purpose will be served by sending back the case for further consideration.

4. We think, in the circumstances, having regard to the events which have happened, the order directing the appellant to be put into civil prison ought to be set aside. We accordingly set aside the order and direct that the appellant be discharged from his personal recognizance. The appellant is entitled to his costs, hearing-fee being assessed at one gold mohur.


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