1. We are invited in this appeal to set aside an order by which the Court below has summarily rejecte and application by the appellant for the appointment of himself as guardian of the person and the property of his wife, Srimati Bibhabati Dasi.
2 On the 24th March 1909, the appellant presented an application under Section 10 of Act VIII of 1890. In this application, he stated that his wife was born on the 19th July 1893, that she generally lived with the petitioner in his house, that she was at the time living with her father in the ancestral house of the latter, that her movable properties consisting mainly of ornaments and wearing apparels were with her father, that some of her other movables were with the petitioner, that no guardian of the person and properties of the minor had been appointed by any person or by any Court, and that no application had been made in that behalf. The petitioner further stated that he was a Bachelor of Arts of the Calcutta University and a Law student, and was a proper person to be appointed guardian for the protection of the person and property of his infant wife. This application was apparently not considered by the learned District Judge before it was directed to be registered. It was presented in office and registered as a matter of the course. The usual notices were issued, with, the result that the father of the girl, Girindra Chandra Gain, presented a petition of objection on the 28th of April 190.9. In this petition the father stated that the girl was two years younger than she was stated to be by the husband in his petition, that his daughter bad been cruelly beaten by her husband and that she had been obliged to run away to the house of her maternal uncle in the neighbourhood. The father added that the ill-treatment had been of such a character that there was grave apprehension of danger to her life and safety if she was placed in the custody of the petitioner. On this ground the father urged that the application ought to be refused.
3. The learned District Judge directed that the matter should be heard on the 26th of May 1909. Before that date, an application was made on behalf of the father of the girl for the issue of a Commission to examine the minor, this application was apparently presented ex parte, and on the 14th May, an order was made for the issue of a Commission to Babu Abani Nath Sen for the examination of the minor. As soon as the petitioner was apprised of this order, he presented an application on the 18th May, in which he objected to the examination of his minor wife at Chinsura on the ground that this would involve needless expense. He suggested that the girl might be examined at the residence of her father which was in the neighbourhood of the Court premises. There was no suggestion that if the girl was examined on Commission at Chinsura, she might, under improper influences, give false evidence, the only objection taken to the issue of the Commission at Chinsura was based on the ground of unnecessary expense ; to this extent, possibly, the objection of the petitioner was reasonable. But in his application he proceeded to make an extraordinary suggestion, namely, that, for the ends of justice, it was desirable that the girl should be examined by the Judge in his Chamber, and that the petitioner, as her husband, had no objection to such examination of his wife. When this petition of objection was presented to the learned Judge, he for the first time came to consider the application on the merits, and held that it was, on the face of it, taken along with the admitted facts, not a bona fide application. His conclusion in substance was that the application was a device to obtain possession of his wife. In this view the learned Judge forthwith dismissed the application with costs and cancelled his previous order for the issue of a Commission. The petitioner has now appealed to this Court, and on his behalf it has been contended that the District Judge had no jurisdiction to dismiss the application summarily, and that inasmuch as the application had been registered, it was incumbent upon the Judge, under Section 13 of the Guardians and Wards Act, to hear such evidence as might be adduced in support of, or in opposition to, the application. Prima facts, this ground is well-founded, because as was pointed out by the learned Judges of the Bombay High Court in the case of Sayad Shahu v. Hapija Begum 17 B. 560, the proceedings under the Guardians and Wards Act are not of a summary character. But, in our opinion, the order made by the learned District Judge was, upon the materials available to him, unquestionably just and should not be disturbed.
4. It may be observed that under Section 7 of the Guardians and Wards Act an order for the appointment of a guardian of the person and property of a minor cannot be made unless the Court is satisfied that it is for the welfare of the minor that the order should be made. In fact the keynote of the whole statute lies in the introductory words of Section 7: the proceedings are to be taken for the benefit of the minor and the minor alone. If an application has been made for an ulterior purpose, such application ought not to be entertained. No doubt, ordinarily a Court must decide upon the evidence whether the appointment of the guardian is or is not for the welfare of the minor concerned. But there may be exceptional cases, and the one before us is of that description in which the Court may find upon undisputed facts that the application is not bona fide. To prevent mala fide applications, the Legislature has provided in Section 10, Sub-section (1), Clause (k), of the Guardians and Wards Act, that the application shall state the cause or causes which have led to the making of the application.
5. Section 11 further renders it obligatory upon the Court to be satisfied that there is ground for proceeding on the application before a date is fixed for hearing thereof, and notice is served as contemplated by the Act. In other words, an application presented under the Guardians and Wards Act ought not to be registered as a matter of course and without examination before the Judge is satisfied that there is ground for proceeding on the basis thereof. One of the material facts to be taken into consideration by the Judge, is the cause or causes which have led to the making of the application. Tested in the light of this principle, the application of the petitioner in the case before us is hopelessly defective, ft is in fact absolutely disingenuous. The only facts stated in this petition were that the petitioner was the husband of Srimati Bibhabati Dasi, that, his wife ordinarily resided with him and that at the time of the application, she was residing with her father in the ancestral family house of the latter at Chinsura. There was not the remotest suggestion that the wife had left the protection of the husband contrary to his wishes in the matter. There was no indication whatsoever that the father-in-law had refused to bring back his daughter to the custody of his son-in-law. There was no allegation that the father-in-law unlawfully kept possession of the ornaments of his wife. Indeed, if these facts had been stated as they ought to have been and would have been stated in any honest application, the foundation for the application under the Guardians and Wards Act would have completely disappeared. It was not till the petition of objection was presented by the father of the girl on the 28th April 1900, that the Court was apprised that there had been serious differences between the parties, and that if the allegations of the father of the girl were true, the husband had been guilty of gross cruelty to his infant wife. Under these circumstances, the learned Judge was, in our opinion, amply justified in the course which he adopted. In fact, when he dismissed the application, on the 18th May 1909, he merely followed the course which he ought to have adopted immediately on the presentation of the application on the 24th March 1909. The learned Judge would have acted unquestionably within his powers if he had rejected the application on the ground that it did not disclose the cause or causes which led to the making of the application as required by Section 10, sub-Section 1, Clause (h), of the Act. But the learned Vakil for the appellant has suggested that if the application were defective, he ought to have been allowed an opportunity to amend it. No doubt, there is some force in this contention and we would have been disposed to grant his prayer for amendment of the original application if we had not been satisfied that the application was wholly mala fide. I n fact, in the events which had happened, the remedy of the appellant was by way of a suit for restitution of conjugal right. Rut in the light of the events which have subsequently happened and have been brought to our notice, we feel no doubt that this matter need not be further investigated. It has been stated to us on the one hand, and not denied on the other, that the petitioner took a second wife on the 28th June 1909. It has also been assented on the one hand and not denied on the other, that the first wife had successfully sued the husband for recovery of possession of her ornaments (alleged in the guardianship application to be in the custody of the father). It is obvious that if the District Judge had made an order for the appointment of the petitioner as guardian of his wife, in the course which events have taken, it would not have been to the interest of the minor. If it is true, as has been found by the Subordinate Judge, that the petitioner has retained the ornaments of his wife and driven his wife to a suit for their recovery, the fact of his appointment as a guardian would have practically debarred such a suit. In fact under Order XXXII, Rule 4, Sub-rule 2, of the Civil Procedure Code of 1908, it would have been necessary for the father to obtain, special order from the Court permitting him to carry on such a suit as the next friend of his infant daughter. In view, therefore, of all the circumstances to which we have referred, the conclusion appears to us to be inevitable that the order of the learned District Judge, though it was made summarily, was on the whole perfectly just.
6. The result is that the appeal is dismissed with costs. We assess the hearing fee at three gold mohurs.