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Brohmomoyee and anr. Vs. Kashi Chunder Sen - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal266
AppellantBrohmomoyee and anr.
RespondentKashi Chunder Sen
Cases ReferredThe Collector of Pubna v. Ramanath Tagore B.L.R. Sup. Vol.
Excerpt:
act ix of 1861 - jurisdiction--marriage--custody of minor--injunction. - .....act ix of 1861 for the custody of a minor, his niece, and also for an injunction restraining the minor's mother and one gopee mohun ghose from carrying out a marriage between the minor and the son of gopee mohun.2. the marriage was at first fixed for the 10th of march 1881, being two days after the petition was presented. the judge accordingly issued an injunction on the 8th of march, and fixed a day for the disposal of the petition. when the petition came on for hearing, it was objected that, before the judge's injunction reached the parties, the marriage had been performed. it was therefore contended that the applicant kashi chunder sen had no more locus standi under act ix of 1861. the judge at once found that the mother of the minor was by law the person entitled to the custody of.....
Judgment:

Tottenham, J.

1. This was an application made by one Kashi Chunder Sen to the District Judge, praying under Act IX of 1861 for the custody of a minor, his niece, and also for an injunction restraining the minor's mother and one Gopee Mohun Ghose from carrying out a marriage between the minor and the son of Gopee Mohun.

2. The marriage was at first fixed for the 10th of March 1881, being two days after the petition was presented. The Judge accordingly issued an injunction on the 8th of March, and fixed a day for the disposal of the petition. When the petition came on for hearing, it was objected that, before the Judge's injunction reached the parties, the marriage had been performed. It was therefore contended that the applicant Kashi Chunder Sen had no more locus standi under Act IX of 1861. The Judge at once found that the mother of the minor was by law the person entitled to the custody of her daughter so far as the bodily custody was concerned, and that point appears to have been practically undisputed. But in order to satisfy himself whether he should give a permanent injunction or not as prayed by the petition, the Judge thought it necessary to investigate the question whether the marriage alleged to have been performed had been performed according to the shastras, and whether it was a valid marriage or not; for, as he says, if the marriage turned out to be not a valid one, the uncle would be entitled to an injunction prohibiting the mother from giving the girl in marriage without his consent. Besides the undisputed point as to the right of the mother to the bodily guardianship, it was also found, and was undisputed, that, as regards the minor's disposal in marriage, the uncle, being her father's brother, had a superior right to that of the mother. It was for this reason that the Judge laid down that if the ceremonies gone through did not amount to a marriage, the uncle would be entitled to an injunction prohibiting the mother from giving the girl in marriage without his consent. The result of this enquiry was, that the Judge was satisfied that the proceedings shown to have taken place between the minor and the son of Gopee Mohun did not amount to a marriage, and upon this finding the Judge finally ordered the issue of an injunction to the mother prohibiting her from giving the girl in marriage without the uncle's consent. The order further provides, that in the event of the uncle arranging a suitable marriage for the girl within the current year 1881, the Court would interfere to arrange for the proper custody of the minor with the view of giving effect to such marriage of the minor. The order further provides, that if the uncle neglect to arrange a suitable marriage within the current year 1881, the Court will be disposed, on application, to authorize the mother to contract the girl in marriage without reference to the uncle.

3. The mother and Gopee Mohun Ghose have appealed to this Court against the District Judge's order. It is contended on their behalf that Act IX of 1861 does not allow the District Judge to determine the right of any party to give an infant female in marriage, or to allow any party to obtain an injunction in respect of a proposed marriage. It is contended, that the application ought to have been dismissed upon the first finding that the mother was lawfully entitled to the custody of her daughter. An objection also has been taken to the decision of the Judge against the validity of the marriage which took place. We agree with the Judge in thinking that the application made does come within the scope of Act IX of 1861, as that Act provides for 'any claim' in respect of 'the custody or guardianship' of a minor. We think that a claim to be guardian for the purpose of marriage does come within the scope of the Act. If a person can, under the Act, claim the guardianship for marriage, we think it quite clear that he is entitled to ask under the Act an injunction to restrain any other person from contracting an improper marriage between the infant and another. So far, therefore, as the Judge went into the question as to the petitioner's right to an injunction, we think he was correct. It is equally clear to us, that under Act IX of 1861 the Judge could not decide as between the parties the question whether the marriage actually performed was a valid marriage or not. We think that in this case the Judge only meant to go into that question, so far as it was necessary to Satisfy his own mind, as to whether there was still time or necessity for him to issue an injunction. He could not have intended his finding on this point to be binding upon any of the parties. It certainly could not bind the parties, who most are interested in the question,--viz., the alleged bride and the bridegroom, as they were not parties to the proceedings. We have been asked to set aside this part of the Judge's decision altogether. But it seems to us unnecessary to do this, as it is sufficient that we should record that the finding, such as it is, is not a judicial declaration in the sense of its being binding upon anybody. It leaves the question of the validity of the marriage still an open question, and when that question is disputed, it must be settled by a regular suit.

4. As to the injunction issued by the District Judge, we think that, in the view he took of the positions of the parties, he was right in issuing it: and we do not think it right for us to set it aside. If the marriage has already been validly performed, that injunction of course hurts nobody. If, on the other hand, the marriage has not been validly performed, the injunction still remains in force, and will be of very great use.

5. On the whole, it appears to us that the appeal should be dismissed with costs.

Broughton, J.

6. I agree in thinking that the Judge has no power to determine the question of marriage so as to bind the minors who are not parties to the proceedings; and I think that he cannot and did not intend to determine the question except for the purpose of satisfying himself whether he should or should not issue an injunction. If a valid marriage has taken place, the injunction would not affect anybody; if, on the other hand, a valid marriage has not taken place, then the injunction is a very useful thing for the interests of the minor. The question of marriage or no marriage is for all purposes still an open question. I think the Judge had jurisdiction under Act IX of 1861 to determine whether he ought to issue an injunction on this application, and I do not think that the Act is confined merely to questions that relate to the custody of the person of an infant. In fact, it clearly appears from the Act itself that it relates to the custody or guardianship. The alternative expression is to be found in several of the sections. And this is a case which shows the necessity of a summary mode of interference when the interests of the minor are put in jeopardy by the conduct of those people who are immediately about her. I think our decision accords with the decision of the Allahabad High Court in the case of Balmakund v. Janhi I.L.R. 3 All. 403 that the question of marriage cannot be enquired into in a summary proceeding like this with regard to the issuing of our injunction; there is no doubt that the same object might be obtained by instituting a civil suit. But the fact that that is so, does not prevent action being taken under a special Act of the Legislature. The Act does not create any new right or liability, but it simply provides for a special remedy for a right or liability already existing. That being the case, parties might resort either to the ordinary form of a suit or resort to the special form given by the Act. This I understand to be the law laid down in several cases which have been applied to this country--see the case of the Wolverhampton Watenvorks Go. v. Hawkesford 28 L.J. (N.S.) C.P. 242 and the cases referred to by Sir B. Peacock in the case of The Collector of Pubna v. Ramanath Tagore B.L.R. Sup. Vol. 630. If the minor in this instance has suffered any injury, it is clearly due to the conduct of those who are about her. The parties knew well enough, at least their conduct sufficiently shows that they were perfectly aware, that an application was being made in a Court of Justice for the protection of the child's interest. In the face of that, even if they did not know that an injunction had issued, it was their duty to stay their hands, and not, as they did, to hurry on the marriage two days before the day originally fixed for it, in order to avoid any order that the Court might make. If the girl has suffered any injury, I say, it is owing to the conduct of the people who are about her, and they are solely to blame.


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