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Dwijapada Karmakar Vs. Miss Baileau and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in34Ind.Cas.632
AppellantDwijapada Karmakar
RespondentMiss Baileau and ors.
Excerpt:
hindu law - apostacy--guardianship of fatherless infants, mother's right to, token she wishes to become christian--guardian of hindu infants, duties of. - .....the obligations which the law imposes upon her, that is to say, of bringing up the children in the hindu faith of her deceased husband.2. an undertaking has, however, been given by her counsel, mr. avetoom, before us that she will not baptise the children and will bring them up as hindus. that being so, there is, therefore, no ground at present for removing her from her position as guardian. it would in any case be a strong order for any court to pass to take a child of 5 years of age from his mother. the point which i next consider is how best this undertaking of hers may be carried out. we have to consider in this matter the interest of the minors themselves in its several aspects. the mother has practically no means, but we have been informed that she has received an offer from a.....
Judgment:

1. This is an appeal which arises out of an application for guardianship of the persons and property of two minors, Gobinda Karmakar and Monindra Chandra Karmakar. Gobinds, who is now stated to be 9 years old, is stated to be just over 7 years of age in the judgment under appeal. Monindra is now said to be 5 years of age. The application was opposed by Subasini Dasi, the mother of the two minors. The petitioner, Dwijapada Karmakar, the uncle of the minor, sought to remove the mother from the guardianship on two grounds: first of all, on the ground that she was a woman of bad moral character and secondly, that she had herself gone over to the Mission House and had made up her mind to adopt the Christian religion and also to get her sons baptised. The mother denied the allegations which were made against her moral character and those have been held not to be established in the judgment now under appeal; and there is no attempt made in this Court to controvert the findings upon this point. Though, in fact, the charge of immorality made against the mother has not been proved, the fact that this charge was made must necessarily be taken into consideration in any order which we make in this matter, for under such circumstances the mother cannot be expected to live with the family who have made this charge against her. As regards the second ground it appears from the record that Subasini has expressed a wish to become a Christian although as a matter of fact she has not yet been baptised. It is not at the present moment certain whether she will become a Christian or not. Even if she had already become a Christian, that would not in itself be a ground for removing her from the guardianship provided that she was in a position to satisfy the Court that she was able to carry out the obligations which the law imposed upon her of bringing up her children in the faith of her husband, whatever may be the faith she herself may adopt. A difficulty has, however, arisen in this case by reason of the fact that it does appear that in the course of these proceedings she expressed her intention to convert her two sons also to Christianity; and had that intention been persevered in, it is possible that we might have made an order different from that which we now pass; for in so changing her children's faith she would be acting contrary to the obligations which the law imposes upon her, that is to say, of bringing up the children in the Hindu faith of her deceased husband.

2. An undertaking has, however, been given by her Counsel, Mr. Avetoom, before us that she will not baptise the children and will bring them up as Hindus. That being so, there is, therefore, no ground at present for removing her from her position as guardian. It would in any case be a strong order for any Court to pass to take a child of 5 years of age from his mother. The point which I next consider is how best this undertaking of hers may be carried out. We have to consider in this matter the interest of the minors themselves in its several aspects. The mother has practically no means, but we have been informed that she has received an offer from a stranger to these proceedings which, if accepted by her, will enable her to give her two sons an education. That offer is to pay all the expenses of the education of the two children at the Hindu Hostel in Krishnagar, attached to the Church Missionary Society there. It has been stated to us that the boys at this Hindu Hostel are all Hindu boys and that no attendance is required by such boys at any of the Bible classes or other classes teaching the Christian religion; and that no attempt will be made to interfere in any way with their Hindu faith. It is on the understanding that the mother will educate her children under these conditions that we make the order. At the same time we think, seeing that the mother has expressed a desire to become a Christian, and that if she does become a Christian she will not be in a position to effectively see to the education of the boys so far as their Hindu faith is concerned, we think we ought to associate with the mother, as guardian, the applicant Dwijapada Karmakar, who as such guardian will be in a position to see that the undertaking which is given by the mother that the children should be brought up in the Hindu faith is properly carried out. The order that we then make is that the mother remains the guardian of the person and property of the children and that with her be associated as guardian the applicant Dwijapada Karmakar.

3. The younger boy is too young, in our opinion, to be sent to a school at once. He should, therefore, remain in custody of his mother until he is seven years old, when he also will be put into school at the Hindu Hostel in Krishnagar, but it is understood and undertaken that he will not be baptised nor other acts done to make him a Christian. The elder boy will go to the Hostel at once. Facilities must be given to both the guardians and the other relatives of the children to see the latter whenever they desire to do so subject to the rules of the Hostel. If the male guardian has any reason to complain that any of the directions or undertakings given in this order have not been carried out or that their terms are in any way infringed, it will be open to him to apply to the District Judge of Nadia who will then make such further order in the matter as he thinks fit. Subject to the rules of the Hostel the children while at the Hostel will be allowed to visit their relatives, including their uncle and others, at their houses.

4. We make no order as to costs of this appeal.


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