1. We are invited to set aside two orders made by the Court below on the 11th and the 12th July 1911, under somewhat exceptional circumstances. The first of these orders purports to have been made under Section 45, Sub-section (1), Clause 4(a) of the Guardians and Wards Act, 1890; and the second under Section 43, Sub-section (4) of the same statute read with Order XXXIX, Rule 2, Sub-rule (3) of the Code of Civil Procedure of 1908. It appears that the petitioners before us were appointed guardians of the person of their step-daughter, Bachhi Sahdei, and at the time the order was made, it was directed that the minor should not be married without the consent of her maternal grandfather and without the leave of the Court. The appellants, it is admitted, have got the girl married in violation of this direction. The learned Judge, when apprised of this event, called upon the appellants to produce the minor in Court. That order, however, could not be carried out, because at the time the order was made, the girl was with the family of her husband. The learned Judge thereupon proceeded to impose a fine upon the appellants under Section 45. He also took proceedings against the appellants to punish them on account of their disobedience of the original order and ultimately directed that they should be confined in prison for three months. We are now invited to set aside these orders on the ground that they were made without jurisdiction, and cannot be justified either upon the admitted facts or upon recognised legal principles.
2. In so far as the first order is concerned, it has been argued that the case is not covered by Clause (a) of Sub-section 1 of Section 45 of the Guardians and Wards Act, 1890. That clause provides for two cases; namely, first, the case in which a direction has been given under Sub-section (1) of Section 12; and secondly, the case in which an order has been made under Sub-section (1) of Section 25. It is manifest that neither of these sections has any application to the contingency which has happened here. It may further be observed that Clause (a) speaks of a person who has the custody of the minor and fails either to produce him or to do his utmost to compel him to return to the custody of his guardian. It is obvious that in a case under Sub-section (1) of Section 1^, the person who has the custody of the minor has not yet been appointed guardian, while in a case under Sub-section (.1) of Section 25, the person against whom the disciplinary action is taken is clearly one other than the guardian to whose custody the minor is to be returned.1 It is obvious, therefore, that the order of the learned Judge for the production of the minor in Court was not made either under Sub-section (1) of Section 12 or Sub-section (1) of Section 25. Consequently, Section 45 has no application, and the order must beset aside as made without jurisdiction.
3. In so far as the second order is concerned, the learned Counsel for the appellants has contended that it must be set aside on three substantial grounds: namely, first, that this is not a case contemplated by Sub-section (4) of Section 43, because the learned Judge could no longer seek to enforce his original order which plainly could not be enforced after the marriage of the minor had taken place; secondly, that the order is bad, because it was not competent to the learned Judge to give any directions to the guardian as regards the marriage of the infant; and thirdly, that as the proceedings for the appointment of the guardian were in their entirety without jurisdiction, a violation of an order made without jurisdiction could not render the appellants liable to be punished under Sub-section (4) of Section 43.
4. In so far as the first branch of this contention is concerned, we are not prepared to accept it as well founded. Sub-section (4) of Section 43 provides as follows: In case of disobedience to an order made under Sub-section (1) or Sub-section (2), the order may be enforced in the same manner as an injunction granted under Section 492 or Section 493 of the Code of Civil Procedure of 1882, in a case under Sub-section (1), as if the ward were the plaintiff and the guardian were the defendant, or in a case under Sub-section (2), as if the guardian who made the application were the plaintiff and the other guardian were the defendant.' It has been contended by the learned Counsel for the appellants that this clause applies strictly to cases in which it is possible to enforce the order which has been disobeyed. As marriage performed in accordance with the rules of Hindu Law cannot be set aside, the order which was originally issued upon the guardians and has been disobeyed by them, can no longer be enforced, and consequently they are not liable to be punished in the manner contemplated in Clause (4) of Section 43. We are not prepared to accept the narrow construction of the word enforced' suggested by the learned Counsel. If that construction were adopted, the clause would be inoperative in a large class of oases, which could not possibly have been intended to be excluded from its operation. In fact, if the term were interpreted as suggested, the clause would be abrogated wherever it might be argued that the order disobeyed could no longer be enforced. For instance, in case? falling under Sections 492 or 493, although the Court may take action by way of attachment of the person and property of the person who has disobeyed the order of the Court, yet he may in the end refuse to carry out the order; that is to say, if he is prepared to suffer the punishment inflicted for disobedience, no one can compel him to carry out the order specifically. In such cases even, it might, on the same principle of interpretation, be contended that the order has not been and cannot be enforced. In the same way, in cases in which an act has been committed in defiance of the order of the Court, even though what has been done is undone, it cannot strictly b8 said that the order has been enforced. In our opinion, Sub-section (4) of Section 43 ought to be read with Sections 492 and 493 of the Code of 1882 or Rules 1 and 2 of Order XXX'X of the Code of 1908, and the plain intent of the sub-section is that the same sanction should be applied in the case of disobedience to an order made under Sections 492 or 493 or Sub-section (3) of Section 43 as is provided in Order XXXIX in cases of disobedience of an injunction issued by a Court. The sub-section is not limited solely to cases where an irremediable mischief has not been done and where, therefore, the status quo ante might be restored; it applies to all cases of disobedience, whether or not the effect of the disobedience is capable of removal or reparation. In our opinion, it was competent to the learned Judge to take action under Sub-section (4) of Section 43.
5. In so far as the second branch of the contention of the learned Counsel for the appellants is concerned, it has been argued that it was not open to the District Judge to give any directions to the guardians relating to the marriage of the infant. In support of this position, reliance has been placed upon the decision in Bai Diwali v. Moti Karson 22 B. 509. That case admittedly does not expressly decide this point; but a doubt appears to have been expressed by one of the learned Judges, whether a direction of this nature could be given under the Guardians and Wards Act, in view of the circumstance that a guardian of the person might in certain cases be different from the person recognized as guardian for marriage under the rules of Hindu Law. [Banerjee on Marriage and Stridhan, 2nd Ed. page 43]. No doubt, that would be an element for serious consideration in cases where such divergence actually happens. But in a case where the person appointed guardian under the Guardians and Wards Act is also the guardian for marriage under the rules of Hindu Law, the distinction can hardly be maintained on principle. It is not necessary for us, however, to decide this question finally, because we are of opinion that the order of the District Judge must be set aside on the third ground urged by the appellants.
6. In so far as the third ground is concerned, it has been argued that inasmuch as the original order which has been disobeyed was made without jurisdiction, no proceedings can be taken under Sub-section (4) of Section 43. In our opinion, this contention is unanswerable. It is well settled that before proceedings can be taken on account of disobedience of an injunction i-sued by a Court, it must be ascertained that the Court had jurisdiction over the subject-matter in controversy. If the Court has no jurisdiction over the matter, or if it has exceeded its powers by granting an injunction in matters beyond its jurisdiction, the injunction must be treated as absolutely void, and the person who has disobeyed it cannot be punished for the alleged offence: Lewis v. Peck (1907) 154 Fed. 273, Ex parte Fisk (1884) 113 U.S. 713 : 28 Law. Ed. 1117; Evans v. Pack (1878) 2 Flipp. 267 : 8 Fed. Cas. 4566; Savage v. Sternberg (1898) 67 Am. St. Rep. 751 : 19 Washington 679, High on Injunctions, Section 1425; Joyce on Injunctions, Section 246. There is in this respect a clear distinction between an order erroneously made with jurisdiction and an order made absolutely without jurisdiction. [Drewry Thacker (1819) 3 Swan. 529 at p. 546, Russell v. East Ang. Ry. Co. (1850) 3 Mac. & G. 104 Laws of England, edited by Halsbury, Volume VII, Section 645, Vol. XVII, Section 622] The case before us is of the litter description. As we have already explained in our judgment in the appeal against the order for appointment of guardian Subhadra v. Dhajadhari Gossain 16 C.L.J. 142 : 13 Ind. Cas. 898 the application of the appellants for appointment of themselves as guardians of the person of their stepdaughter was not made voluntarily. No proper judicial proceeding can Le instituted upon an application so made and the order for appointment of guardians and the directions given to them relating to the marriage of the infant must, therefore, be deemed as wholly without jurisdiction.
The result is that these appeals will be allowed, the Rule made absoulte and the orders of the Court below discharged.