Harendra Nath Chowdhury vs Brinda Rani Dassi

Maclean, C.J.—We are asked by the Petitioner to exercise the jurisdiction vested in this Court under sec. 622 of the Code of Civil Procedure, under the following circumstances:--The father and mother of the minor named in the proceedings in this case have for some time not been on good terms, and some months ago, at any rate, the husband left his wife, in whose custody the three children of the marriage, two boys and the minor girl in question, remained. On the 21st January last, the father, according to the mother''s story, and virtually, it is uncontradicted, on this point, carried off the girl, as she was coming from school, and the mother has not seen her since. On the 25th January 1898, the mother applied, under the Guardian and Wards Act (VIII of 1890), to the District Judge of Dacca, to be appointed guardian of the minor, and for an injunction to restrain various persons (including the present Petitioner) from marrying or allowing the marriage of the minor. On the 1st February, the District Judge of Dacca granted an ex-parte injunction restraining the "Petitioner (and others) from performing or causing others to perform the marriage or any act relating to the marriage of the said minor girl with yourself or any relation of yours until receipt of further orders from this Court." The language of the injunction is perhaps not very happy. This order has been served on the Petitioner. On the 25th February 1898, the mother was appointed guardian of the minor. The father apparently did not resist the application, nor is he a Petitioner on the present rule. The mother has adduced some evidence to show he is a worthless person: but, for the present purpose, I need say nothing more upon this.

A warrant has been issued under sec. 12 of the Act against the father to produce the girl as soon as possible. This warrant was ordered to be issued on the 25th January last; the girl has not been produced.

Under these circumstances, as I have said, we are invited to interfere under sec. 622 of the Code.

The Petitioner is the brother of the intended bridegroom, to whom, as the Petitioner says, the father of the girl contracted, in the early part of last January to give her in marriage.

His contention is (1) that as he resides outside the jurisdiction of the District Court of Dacca, that Court had no jurisdiction to grant an effective injunction against him; (2) that it could not enjoin him as he was not a party to the proceedings.

I will deal with these points seriatim. I am not prepared to say that the mere fact that the Petitioner resided outside jurisdiction of the Dacca Court would, per se, be sufficient to prevent that Court from granting an interim injunction in a case such as the present. Under sec. 9 of the Act, the application was necessarily made to the District Court, Dacca, as the minor''s ordinary residence is within the jurisdiction of that Court It would, I think, be rather an anomalous state of affairs if, for instance, a man living just outside the local borders of the jurisdiction of a particular District Court, to which in relation to a minor the application for an injunction had of necessity to be made, and who took away that minor whose ordinary residence is within that jurisdiction, could successfully urge that the Court had no jurisdiction to enjoin him because he lived outside the local limits of the Court''s jurisdiction. Such, a contention does not commend itself to my mind. The fact of his residence outside the jurisdiction may possibly create some difficulty as to service, but cannot, in my judgment, destroy the jurisdiction of the Court to make the order.

As regards the second contention, I think the Court had ample jurisdiction to grant an interim injunction. There was an application for guardianship pending, and, as the then applicant alleged, an improper marriage of the minor threatened. The matter was urgent. If the applicant were compelled to wait until the Petitioner were made a party to the application, the mischief, sought to be averted, would probably be effected in the meantime. Quite apart from the question whether there is not an inherent jurisdiction in the Court to interfere by way of injunction, to prevent an improper marriage of an infant, when proceedings are pending for the appointment of a guardian, I think the Court had jurisdiction under sec. 12 of the Act to make the order. That section authorises the Court to make such order for the temporary protection of the person of the minor as it thinks proper, and I do not consider that power is only exercisable, as the Advocate-General contends, after the production of the minor.

There might have been more force in the Petitioner''s contention if the injunction had been granted in a suit to which he was not a party, but the application was a summary one under the Act, and sec. 11 indicates what persons are to be served and at what period. This section implies that in the first instance no one is to be served, as the matter cannot proceed until the Court is satisfied there is a ground for proceeding. When it is so satisfied it directs what persons are to be served.

I think, however, that when an interim injunction, such as the present, has been granted, the party enjoined ought to be served under sec. 11 of the Act. Whether this were or were not done, and whether the interim order has been made absolute by the order of the 25th February last, there is no evidence to show, but, I think, that the injunction ought not to have been made absolute if it have been, unless and until the Petitioner had been served with notice of the application.

I have gone into this matter rather more fully than is, perhaps, necessary, out of respect to the arguments submitted to us, but, I think, there is a simple answer to the application In my opinion the Petitioner should have applied, as the injunction was ex-parte, to the District Judge to discharge it. That Judge would then have gone into the matter, and heard all the Petitioner had to say, and if he refused to discharge the order, the Petitioner could then have considered whether his right course were to appeal or to apply under sec. 622. As matters stand at present, seeing that this course was clearly open to the Petitioner, I am not prepared to interfere under sec. 622. The effect of the present application is to make us, qua the merits of the Petitioner''s case, a Court of first instance. I express no opinion on the merits --I mean as to whether the proposed marriage is or is not a desirable one in the interests of the minor, nor as to the alleged contract of marriage by the father, nor as to the effect of the appointment of the mother as guardian upon the question of the marriage of the minor. But whilst I refrain from expressing any such opinion, I cannot but point out to the parties to this litigation, and especially the father and the mother, that what they ought to regard, as paramount is the interest and happiness of their child, and I may perhaps suggest whether, by some friendly intervention, this litigation might not be stopped, in the hope of securing that interest and that happiness. The rule must be discharged with costs, three gold mohurs.

Macpherson, J.

I agree. I think that the Court had the power to make the order which it did. I also think that this is not a case in which this Court ought to interfere under sec. 622 of the Code.