Mrs. Annie Besant vs G. Narayaniah

Arnold White, C.J.—I have already dealt with the question whether the learned Judge had jurisdiction to grant the relief which he has given

in this suit. The question remains whether his judgment should be upheld. The more important dates are as follow:

The defendant is the President of the Theosophical Society and the plaintiff has been a member of the Society since 1882. About the end of 1908

the plaintiff was appointed Assistant Corresponding Secretary of the Esoteric Section of the Society and he and his family took up their residence

at the headquarters of the Society, Adyar, in a house which he occupied rent free. In September 1909 he removed his two minor cons,

Krishnamoorti and Nityananda from school, and they received gratuitous instruction at Adyar from one Mr. C.W. Leadbeater and others. The

boys were then aged about 14 and 11. The defendant first became acquainted with them in December 1909. On the 6th March 1910, the plaintiff

signed a letter (Ex. A.) by which he constituted the defendant the guardian of his minor sons. The plaintiff alleges in the particulars which he was

ordered to deliver that in April 1910 he witnessed the incident which is described in paragraph 1 of the particulars. He also alleges that between

December 1910 and February 1911 and on later dates he was told by certain parties that they had seen the incident mentioned in paragraph 2 of

the particulars. In March 1911 the defendant took the boys to Benares and thence to England. In October 1911 they returned to Adyar and

remained there until December 1911. Mr. Leadbaater, who had been at Adyar throughout, then took them to Benares. On the 31st December

1911, the plaintiff informed Mrs. Van Hook at Benares of the incident described in paragraph 1 of the particulars, and on the same day the plaintiff

went to the defendant and demanded that the boys should be separated from Mr. Leadbeater, and referred her to Mrs. Van Hook for the reason.

The defendant refused the plaintiff''s request. The plaintiff returned to Adyar at the beginning of January 1912 and made complaints to various

persons. On the 19th January 1912 there was an interview at Adyar between the plaintiff and the defendant and several members of the Society. A

note of the proceedings at the interview was taken down by the defendant. The note is to the effect that the plaintiff stated he had no objection to

the boys being taken to England and that the defendant said that she had separated the boys from Mr. Leadbeater. Mr. Leadbeater had left India

about January 13, 1912. On January 26, 1912, the defendant left Adyar with the two boys for Benares and shortly afterwards took them to

England. The boys were left with Mr. Leadbeater and others for a short time in Sicily, the defendant being in England. The boys then followed the

defendant to England, Mr. Leadbeater accompanying them to Genoa. It having come to the knowledge of the defendant that the plaintiff had been

making enquiries with respect to the charge against Mr. Leadbeater contained in the second paragraph of the particulars, she wrote to him a letter

on February 7,1912, (L L) in which she dismissed him from his office of Secretary. On 11th July 1912 the plaintiff wrote to the defendant a letter

(Ex. AA. 6) in which he purported to cancel the letter Ex. A and asked her to hand over to him his two sons. In October 1912 the defendant

returned to Adyar leaving the boys in England and the plaintiff instituted this suit.

I propose, first, to state what appears to me to be the law as to the rights of a father to the control and custody of his minor children. I do not

think it has been suggested that the exposition of the law relating to this matter contained in the judgment of Vice-Chancellor Kindersley in re Curtis

(1859) 28 L.J. Ch. 458 is not still the law of England. It is there laid down that the Court of Chancery cannot decide upon the custody of infants

simply with reference to what is most for their benefit and cannot interfere with the rights of a father, unless he so conducts himself as to render it

essential to the safety and welfare of the children in some serious and important respect, either physically, intellectually or morally, that they should

be removed from his custody. The Vice-Chancellor in his judgment cited the case of In re Fynn (1848) 64 E.R. 205 S.C. 2 De. Gex. 457 in which

Lord Justice Knight Bruce made the following Observations : ""Of the present case I may say, that were I at liberty, as I am not, to act on the view

which out of Court I should, as a private person, take of the course likely to be most beneficial for the infants, I should have no doubt whatever

upon the question of interfering with the father''s power. Without any hesitation-I should do so,-to what extent and in what manner I do not say.

But there may and must be many cases of conduct, many cases of family differences, family difficulties and family misfortunes, in which though

interposition would be for the interest and advantage of minor children, Courts of Justice have not the means of interfering usefully, or, if they have

the means, ought not to interfere."" "" A man may be in narrow circumstances, he may be negligent, injudicious and faulty as the father of minors; he

may be a person from whom the discreet, the intelligent and the well disposed, exercising a private judgment, would wish his children to be, for

their sakes and his own, removed; he may be all this without rendering himself liable to judicial interference, and in the main it is for obvious reasons

well that it should be so. Before this jurisdiction can be called into action between them, the Court must be satisfied, not only that it has the means

of acting safely and efficiently, but also that the father has so conducted himself, or has shown himself to be a person of such a description, or is

placed in such a position, as to render it . not merely better for the children, but essential to their safety or to their welfare, in some very serious and

important respect, that his rights should be treated as lost or suspended--should be superseded or interfered with. If the word ""essential "" is too

strong an expression, it is not much too strong. The defendant suggested that the law as laid down in re Curtis (1859) 28 L.J. Oh. 458 was altered

by the Guardianship of Infants Act 1886 (49 and 50 Viet. C. 27). No doubt this enactment altered the law but its provisions, as it seems to me, do

not touch the general principles to which Kindersley, V. C. referred. The cases in which the Courts have refused to deliver over a child when it has

arrived at years of discretion to its father on a writ of Habeas Corpus are not in conflict with the rule of law that a father is entitled by the law of

England to the custody of his children till they attain the age of 21. In dealing with these Habeas Corpus cases Cotton L. J., in his judgment in In re

Agar Ellis (1883) 24 Ch. D. 317 (1883) says:-"" But then there are cases where undoubtedly the Court declined to interfere on Habeas Corpus in

order to hand the child over to the father or to interfere with it when it was of the age of discretion--the age of sixteen in the case of girls and the

age of fourteen in the case of boys. For what reason is that ? When an infant is So young as not to be able in the eyes of the law to exercise a

discretion, then unless that infant is in the proper custody, that is to say the legal custody of the father or the guardian appointed, it is not in legal

custody, and the very object of suing out a Habeas Corpus is to have it ascertained whether the person who is sought to be brought up is under

duress or imprisonment; but nobody can be placed in the position of being under duress or imprisonment if he expresses a wish to remain where he

is at the time the writ is issued, that is to say, provided the person is competent to express such a wish; and, if he does, it is the duty of the law to

regard it.

In In re Agar Ellis (1883) 24 Ch. D. 317 the minor was a girl of over 16. In that ease it was held that the Court will not interfere with the

authority of the father as regards the control and education of his children until they attain the age of 21 except (1) where by his gross moral

turpitude he forfeits his rights, or (2) where he has by his conduct abdicated his paternal authority, or (3) where he seeks to remove his children,

being wards of Court, out of the jurisdiction without the consent of the Court. The defendant pointed out that in the Agar Ellis case the children

were in the custody of the father when proceedings were instituted by the mother. This no doubt is so. But for the moment I am only dealing with

the principles of law which govern this question and I do not think that the fact that the children were in the custody of the father would give him

greater rights than if they were not. In regard to the question of benefit of the infant, Bowen, L.J. in the same case, said at page 337 ""Then we must

regard the benefit of the infant; but then it must be remembered that if the words ""benefit of the infant"" are used in any but the accurate sense it

would be a fallacious test to apply to the way the Court exercises its jurisdiction over the infant by way of interference with the father. It is not the

benefit to the infant as conceived by the Court, but it must be the benefit to the infant, having regard to the natural law which points out that the

father knows for better as a rule what is good for his children than a Court of Justice can"". * * * ""Except in cases of immorality, or where he (the

father) is clearly not exercising a discretion at all, but a wicked or cruel caprice, or where he is endeavouring to withdraw from the protection of the

Court, which is entrusted with such protection by law, the custody of the infant, as a rule, this Court does not and cannot interfere, because it

cannot do so successfully, or I should rather say because it cannot do so with the certainty that its doing so would net be attended with far greater

injury both to the infant itself and also to general social life"". * * * ""As soon as it becomes obvious that the rights of the family are being abused to

the detriment of the interests of the infant, then the father shows that he is no longer the natural guardian-that he has become an unnatural guardian-

that he has preverted the ties of nature for the purpose of injustice and cruelty. When that case arrives the Court will not stay its hand; but until that

case arrives it is not mere disagreement with the view taken by the father of his rights and the interests of his infant that can justify the Court in

interfering."" Mr. Simpson in his Book on ""Law of Infants"" on page 131, (3rd Edition), suggests that the law as laid down in re Agar Ellis (1883) 24

Ch. D. 317 ""seems to be too narrow a statement of the law as at present administered,"" and the learned author refers to the judgment of Fitz

Gibbon, L, J., In in re Ohara (1900) 2 Ir. B. 232. The strongest passage in the judgment of the Lord Justice which could be relied upon as

supporting the suggestion that the judgments in re Agar Ellis (1883) 24 Ch. D. 317 are too narrow a statement of the law is the following;-""It

appears to me that misconduct or unmindfulness of parental duty, or inability to provide for the welfare of the child, must be shown before the

natural right can be displaced. Where a parent is of blameless life, and is able and willing to provide for the child''s material and moral necessities in

the rank and position to which the child by birth belongs-i. e. the rank and position of the parent--the Court is, in my opinion, judicially bound to

act on what is equally a law of nature and of Society and to hold, in the words of Lord Esher, that, '' the best place for a child is with its parent''.

Of course I do not speak of exceptional cases, where special disturbing elements exists which involve the risk of moral or material injury to the

child, such as the disturbance of religious convictions or of settled affections, or the endurance of hardship; or destitution with a parent as

contrasted with solid advantages offered elsewhere. The Court, acting as a wise parent, is not bound to sacrifice the child''s welfare to the fetish of

parental authority by forcing it from a happy and comfortable home to share the fortunes of a parent, however innocent, who cannot keep a roof

over his head or provide it with the necessaries of life."" With all respect to the learned author, to my mind there is nothing in this passage which

indicates that the learned Lord Justice intended in any way to dissent from the principle laid down in In re Agar Ellis (1883) 24 Ch. D. 317 In

Thomasset v.Thomesset (1894) Probate 295 Lindley L.J. said that ""independently of writs of Habeas Corpus the Court of Chancary exercised the

power of the crown as parens patriae over infants and in exercise of this jurisdiction the power of the Court has always been much more extensive

than that possessed by Courts of common law under a writ of Habeas Corpus."" The Lord Justice then refers to a case of Todd v. Lynes which is

unreported, (see page 127 Simpson''s Law of Infants) where a father obtained an order for the delivery to him of the custody of his son, a young

man of 17 who had been pursuaded by the defendant to leave his father and enter a monastery under the charge of the defendant. As is pointed

out in Thomasset v. Thomasset (1894) Prordate 295 what the wishes of the boy were does not appear.

In The Queen v. Gyngall (1893) 2 Q.B. 232 Lord Esher, Master of the Rolls, pointed out the distinction between the Common Law jurisdiction

under which the Common law Courts used to deal with these matters by Habeas Corpus, (I take it that the learned Judge did not mean this was

the only way in which the common law jurisdiction could be exercised) and the Chancery jurisdiction, ""At common law,"" the Master of the Rolls

said, ""the parent had as against other persons generally an absolute right to the custody of the child unless he or she had forfeited it by certain sorts

of misconduct."" The Chancery jurisdiction was a paternal jurisdiction ""in virtue of which the Chancery Court was put to act on behalf of the Crown

as being the guardian of all infants."" I do not think that the Master of the Rolls meant to suggest that in the exercise of this jurisdiction the natural

rights of the parent were not considered. All that was laid down was that a Court of Chancery could supersede the natural rights of a parent if the

welfare of the infant demanded it. In The Queen v. Gyngall (1893) 2 Q.B. 232 the Master of the Rolls cites with approval the passage from the

judgment of Knight Bruce v. C. in re Fynn (1848) 64 E.R. 205 S.C. 2 De. G. & Sec 457 to which I have referred. I may also refer to in re

McGrath (1893) 1 Ch. 143 a case in the Chancery Division decided a year before; The Queen v. Gyngall (1893) 2 Q.B. 232

As regards the Indian cases, this High Court would seem to have acted in accordance with the principles of the decision in In re Agar Ellis

(1883) 24 Ch. D. 317 see Reade v. Krishna ILR (1886) M. 391 and Pollard v. Rouse, ILR (1910) M. 288 Certain Indian authorities were cited

by the defendant. In In the matter of Saithri ILR (1881) B. 307 the application was for an order in the nature of a Habeas Corpus. On the facts of

that case the Court was not satisfied that the application by the mother was bona-fide, the mother being a servant earning 8 annas a month and

having no house of her own; and was of opinion that the mother had precluded merely by her conduct for 8 years from demanding that the child

should be given up to her and that to do so would be most detrimental to the welfare of the child. In Sarat Chandra Chakrabarti v. Fortnan ILR

(1889) A. 213 at p. the application for the custody of the minor was made not by his father but by his brother. The report says that the father had

gone to Benares to end his days there."" I am unable to assume from this, as the defendant wished us to assume, that the natural right of the father

had devolved upon the elder brother. In view of what I conceive to be the law I feel considerable doubt as to whether I should be prepared to

follow the decision of the Allahabad High Court in Bindo v. Shamlal 219I.L.R. (1906) A. 210., and of this Court in Muthuveerappa Chetty v.

Ponnusami 10(1911) 22 M.L.J. 68 S.C. 1911 I M.W.N. 561 In Mookoond Lal Sing v. Mobodip Ghandar Shigha .I.L.R. (1898) C. 881 the

Court decided on the facts of that case that the prima facie right of the father was displaced. See also In re Joshy Assam ILR (1895) C. 290 In the

case of re Ghulbhai and Lilbai ILR (1908) B.50 where it was held that the interest, well being and happiness of the minors ought to be the

paramount consideration of the Court, both the parents were dead. It was suggested by the defendant though I do not think the contention was

very seriously pressed that the law of England was more favourable to the natural rights of the father than the Hindu Law. I do not think this has

been suggested in any of the Indian cases, and I am not prepared to accede to it. In Muthuveerappa v. Ponnusami (1911) M.W.N. 561 the

learned Judges no doubt say that the texts of Hindu Law do not recognise any "" absolute rights of guardian in any one"" but neither does the law of

England.

So far, I have dealt with the general question of the natural rights of the father. In this case, however, we have what purports to be an express

delegation of the father''s rights by Ex. A, the letter of the 6th March 1910, and what purports to be an express revocation of that delegation by

Ex. A A 6, the letter of 11th July 1912. It does not seem to be material whether the letter Ex. A is to be regarded as a waiver, or an express

delegation, of the plaintiff''s paternal rights. If it is to be regarded as a waiver, it does not in itself operate so as to preclude the father from re-

asserting his rights. If it is to be regarded as an express delegation, I think the delegation is prima facie revocable though there may be

circumstances which would lead a court to hold that the delegation ought not to be revoked. In In re Agar Ellis (1883) 24 Ch. D. 317 Cotton L. J,

said on page 333 "" the father, although not unfitted to discharge the duties of a father, may have acted in such a way as to preclude himself in a

particular instance from insisting on rights he would otherwise have, as where a father has allowed, in consequence of money being left to a child,

the child to live with a relative and be brought up in a way not suited to its former station in life or to the means of the father. There the Court says ''

you have allowed that to be done, and to alter that would be such an injury to the child that you have precluded yourself from exercising your

power as a father in that particular respect,'' and then the Court interferes to prevent the father from having the custody of the child, not because he

is immoral or has forfeited all his rights, but because in that particular instance he has so acted as to preclude himself from insisting on what

otherwise would be his right. That was the case in Lyons v. Blenkin (1821) 37 E.R. 842 S.C. Jac. 245 which has been cited.

There can be no question in this case that the agreement of March 1910 has been acted on. In Queen v. Bnrnardo (1889) 23 Q.B. D. 305

Lord Esher said that if the parent revoked the agreement before it had been acted on, it would not be binding. Lord Justice! Lindley, however, laid

down the law in much more general terms. He said in page 315 "" Notwithstanding such an agreement the parent would be the legal guardian of the

child and she is incapable of binding herself not to exercise her rights as such. She could therefore, revoke the agreement at any moment, as could

any other guardian in a similar case."" Mr, Justice Wallis in Pollard v. Rouse ILR (1910) M. 288. stated the law in much the same way. He said on

p. 292, "" This delegation of parental authority to the plaintiff is revocable at any time and it is the duty of the parents and guardians to revoke it if

used to the detriment of the children."" This question is discussed by Mr, Simpson on p. 135 and by Sir E. J. Trevelyan in his book on '' The Law of

India relating to Minors'' on p. 70. The latter states the law thus:-"" A father may also lose his right to the guardianship of his children, and to the

control of their education where he has permitted another person to maintain and educate them, and it would be detrimental to the interests of the

children to alter the manner of their maintenance or the course of their own secular or religious education. The Court will not, when he has

acquiesced for some time, per nit him arbitrarily or capriciously to alter the mode of their maints nance and education, or to take them from the

custody in which he has allowed them to remain."" There are further observations on the subject on page 132.

As the authorities were very elaborately discussed in the course of the argument of this appeal, I have thought it necessary to refer to them at

some length. I am prepared, however, to accept and apply the succinct statement of the law which is to be found in Lord Halsbury''s Laws of

England, volume 17, p. 107. "" After a surrender by him (the father) of the custody has actually taken place, he can recover the custody unless his

doing so would be injurious to the interests of the child"".

The defendant contended with reference to my judgment on the question of jurisdiction that inasmuch as the jurisdiction exercised by the learned

Judge was the Equity Jurisdiction given by the Letters Patent, the Court would look solely to the welfare of the infants. I cannot accede to this. I do

not think that the Courts in Equity have ever professed to look solely to what appears to them to be the welfare of the infant without regard to the

natural rights of the father. The judgment of the Master of the Rolls in R. v. Gyngall (1893) 2 Q.B. 232 speaks of the ""supersession"" of the natural

rights. This seems to me to involve that the natural rights must be recognised and considered.

There is one other question of law which I desire to refer to before I pass to the facts. The effect: of the appointment of the father as guardian

in this case, (it is the appointment of the father and not the making of the minors wards of Court, as I stated in my judgment on the question of

jurisdiction, which has this effect), was to extend the period of minority of the elder boy to the age of 21. At the time the order was made, the elder

boy was nearly 18/ the ordinary age of majority under the Indian Law. We were referred by the defendant to In the matter of the Petition of

Nazirun ILR (1880) C. 19 where it was held that an application for the certificate of guardianship under Act XL of 1858 which, if granted, would

prolong the minority of the infant from 18 to 21, should not be granted when the alleged minor is admittedly on the point of attaining the age of 18,

unless under particular circumstances, as where very great weakness of mind was proved, or where it was shown that there was some absolute

necessity for making such order, The words ""absolute necessity"" are of too general a character to enable us to derive much assistance from this

decision. The fact that a minor is nearly 18 when an order is asked for, which will have the effect of extending his minority, is no doubt a matter to

be taken into consideration by any Court which is called upon to determine whether in all the circumstances of the case such an order shall be

made. The defendant asked to be allowed to adduce in evidence certain affidavits made in England which she professed to rely on by way of

answer to an application to commit her for contempt, which has been made, to this Court. These affidavits are of course not evidence for the

purpose of this appeal. The defendant did not ask for a Commission to examine as witnesses the parties by whom the affidavits were made.

At the trial and on the hearing of this appeal several questions were discussed which bore more or less directly on the question of the welfare

of the boys. There is the question as to what has been called the deification of the elder boy. This is raised in the 10th issue, ""Has the defendant

stated that the elder boy is or is going to be Lord Christ or Lord Maitreya ?"" The finding of the learned Judge was in the affirmative. There can be

no question, I think, that, in the first instance the two boys were taken charge of by Mr. Leadbeater and afterwards by the defendant for

educational purposes with a view to their being pent to an English University. I do not doubt that the plaintiff who had been a member of the

Theosophical Society since 1882 and for some years had been a Secretary of the Esoteric Section of the Society contemplated that the education

should be in accordance with the views and tenets of Theosophy. The idea that the boy was to become vested with extramundane at tributes was,

I think, a later development.

With regard to this, Sir Subramania Aiyar, with reference to the plaintiff''s consenting to the boys being taken to England, said in his evidence,

p. 344:- ""The great inducement, as I gathered, was that the boys were going to get an English University education which was beyond his

(plaintiff''s) power to give."" In cross-examination he said imp. 346 ""plaintiff was induced to sign the letter only for the sake of English University

education. The English University education was the one thing which influenced him.

I do not think that the defendant questioned the finding of the Judge that, although the plaintiff was aware when he signed the letter of the 6th

March 1910 (Exhibit A) that the defendant desired to bring up the boys in such a manner as to develop their spiritual powers, neither the plaintiff

nor the defendant contemplated the development of the elder boy into ""a vehicle"" for the manifestation of supernatural powers or persons. The

defendant denied in her evidence that she had ever said that the elder boy was or was to be, the Lord Christ or the Lord Maitreya; but she

admitted having said that she believed that ""his body would be the vehicle"" for his reincarnation. In cross-examination, in answer to the question

Do you believe his body will be used by the Lord Maitreya, she said "" I do, I admit....that; I do believe that the body will be used by Lord

Maitreya some years hence."" In an address by the defendant published in one of the Theosophical journals (Ex. P) we find a statement that "" the

body of the disciple Alcyone (i.e., the elder boy) has been handed over to those who have come down with him through the ages, to be trained

and made ready for a similar destiny,"" the destiny being the surrender of the body to Christ. The defendant met the argument that the fostering of

such ideas as these in a boy of fifteen or sixteen years of age would necessarily be prejudicial to his moral and intellectual welfare, by the

contention that the setting before him of this ideal would necessarily have a purifying and ennobling effect. There might be something in this if what

was set before him was that this destiny might be in store for him if he proved worthy of it. But I understand the defendant''s evidence, to be that

the body of the boy had already been selected for the purpose of becoming the "" Vehicle"". In paragraph 12 of her written statement the defendant

says it is true that respectable people have prostrated themselves before him. He was made the head of an Order called the Star of the East (the

proceedings at one of the meetings of the Order are described in an article in a Theosophic Journal Ex. C. published in February 1912) and he

underwent two ceremonies of Initiation as to the nature of which there is no evidence. It may be said that all this, so far from stimulating the moral

and intellectual qualities of the boy, might have an opposite effect. I do not profess to know how much there is in common between the tenets and

beliefs of the Hindu Religion and the tenets and beliefs of Theosophy. I am prepared to assume a very great deal. I am also prepared to assume

that the plaintiff is a pious Hindu and that he was, when he signed Ex. A, an ardent Theosophist. But there is all the difference between a man

holding abstract views in a matter of this sort and being a consenting party to these views being given effect to in the person of his own son. A

father may believe in the doctrine of reincarnation and may have given expression to that belief, but he may well be reluctant that the body of his

own son should be the medium.

I do not think that the plaintiff when he signed Exhibit A contemplated that the boys were to be devoted to lives of poverty and celibacy. I do

not suggest that the importance of an education at Oxford which I doubt not was the chief inducement of the father when he consented to the boys

being taken to England was ever lost sight of by the defendant, but it was, I think, regarded by the defendant and by Mr. Lead beater as

subordinate to the main purpose to which the life of the elder boy was to be devoted. We find the defendant writing to a correspondent (Exhibit

QQ) on the 4th June 1912, "" Both Mr. Leadbeater and I are quite indifferent as to Krishna (the elder boy) taking a degree. A degree is of no value

to a spiritual teacher and Nitya''s (the younger boy''s) degree, would bring no credit to us but only to his family.

I now pass to a topic which I desire to discuss as briefly as possible and that is the connection of Mr. Leadbeater with the two boys. There

can be no question that the defendant and Mr. Leadbeater were closely associated in Theosophical work and were in strong sympathy with each

other. In this connection, I need only refer to Exhibits F. and G. Ex. F. is an extract from an article written by Mr. Leadbeater in the Adyar Album,

a work which was on sale to the public in 1911 in which he says, speaking of the defendant, (p. 155) "" Whether you understand or not, you will be

wise to follow her implicity, just because she knows. This is no mere supposition on my part, no flight of the imagination; I have stood beside your

President in the presence of the Supreme Director of Evolution on his globe and I know whereof I speak. Let the wise heat my words, and act

accordingly."" In Ex. G. the defendant writing in the following year of Mr. Leadbeater in a Theosophist journal says, amongst other things, "" By hard

patient work he has won rewards, perfecting each faculty on plane after plane, gaining nothing without hard work, as he has often said, but gaining

surely and steadily until he stands, perhaps the most trusted of his Master''s disciples, ""on the threshold of Divinity.

The finding of the learned Judge, in paragraph 4 of his judgment seems to me to be supported by the evidence. The finding is "" It is clear that

the plaintiff''s children were first selected as likely subjects for training in the tenets of the Society by Mr. Leadbeater, who professes to have

peculiar powers in this respect, and that it was through his influence that the defendant was induced to take an interest in them, and that from the

first Mr. Leadbeater desired to get the children under his own control and out of that of the plaintiff whom he regarded as an obstacle to his own

purposes. (See Mr. Leadbeater''s letter Exa. W2., W3., W4 dated December 1909 and Ex. Y, dated 3rd Jnnuary 1910)"" To the letters referred

to by the learned Judge I may add Ex. Y5 dated 18th April 1910. I think I may fairly say that the defendant''s regard for and trust in Mr.

Leadbeater was unqualified except with regard to certain opinions which Mr. Leadbeater held in regard to boys. As regards these opinions, the

defendant condemned them, as mischievous, and I do not doubt that the defendant implicitly believed Mr. Leadbeater''s promise that he would not

preach a practice which has been described as his '' unconventional'' doctrines. Mr. Leadbeater''s '' unconventional'' views are to be found in

Exhibit XVI a letter written by him to a Correspondent on the 27th Feb. 1908, in Exhibit H, a letter written by him to the defendant on the 30th

June 1906 and in Ex. J, a letter written by him to the defendant on the 11th September 1906. The defendant''s attitude in the matter is indicated in

her circular letter (Exhibit XIV) and in her letter to Mr. Leadbeater of the 6th August 1907 (Exhibit XII), to which he replied by his letter dated the

30th August 1907 (Ex. XIII). In cross-examination with regard to this matter, certain answers were given by Mr. Leadbeater which are to be

found at p. 377, lines 12 to 29. With regard to this part of the case, the learned Judge observed in paragraph 14 of his judgment, "" Mr. Leadbeater

admitted in his evidence that he has held and even now holds opinions which I need only describe as certainly immoral and such as to unfit him to

be the tutor of boys, and taken in conjunction with his professed power to detect the approach of impure thoughts render him a highly dangerous

associate for children. It is true that both he and the defendant declared that he has promised not to express or practice those opinions, but no

father should be obliged to depend upon a promise of this kind."" I entirely agree.

It was contended by the defendant that in this matter the plaintiff acted '' with his eyes open'' and was aware of the opinions entertained by Mr.

Leadbeater when he consented to the arrangement which brought his sons into close relations with him. The plaintiff had been a member of the

Theosophical Society since 1882. In l906 there was an enquiry with reference to certain complaints which were made against Mr. Leadbeater,

before an advisory Committee. A report was made, and Mr. Leadbeater resigned his membership of the Society. There was a subsequent

investigation as the result of which Mr. Leadbeater was exonerated and he subsequently rejoined the Society. The plaintiff in examination-in-chief

in speaking of a circular recordmending the re-admission of Mr. Leadbeater into the Society (which I take is Exhibit XIV, said, that he voted for

his admission because the defendant said that he was innocent and that he believed it at the tine because he had faith in the defendant (p. 223). He

denied (247) having received the letter or ever having seen it, and said that he did not know that Mr. Leadbeater had been acquitted by any

Committee and that the General Council had said that he might rejoin if he wished (p. 248). He also said that he did not remember what the

defendant stated in her Presidential Address at the Convention in 1908 and that he knew nothing about the scandals in 1906. In 1906 the plaintiff

was not associated with the Esoteric Section of the Society, and, although I think it is extremely probable that he knew a great deal more about the

charges against Mr. Leadbeater and the consequent proceedings than he was prepared to admit in the witness-box, his story that he voted for his

(Leadbeater''s) readmission because he (the plaintiff) had entire confidence in the defendant does not seem to be an unreasonable one. In

connection with this question one of the defendant''s witnesses who was examined on Commission in Bombay and who says that he joined the

Thaosophical Society nine or ten years ago said that he knew that Mr. Leadbeater had resigned the Society, that at the Convention held at Madras

a resolution was passed asking him to rejoin the Society, that he did not know anything of any inquiry into the charges against Mr. Leadbeater, that

he had not seen any records in connection with that enquiry and that be knew about his resignation only at the time when the resolution for his

reinstatement was passed.

Assuming that in March 1910 the plaintiff was willing '' with his eyes open'' that the boys should be closely associated with Mr. Leadbeater,

and signed the letter (Ex. A) knowing that they would be closely associated with him, I am not prepared to say that it was not within his rights as a

parent to take up a different attitude later even if nothing had subsequently taken place which might afford ground for suspicion that the complaints

made in 1906 were not without foundation.

I now pass to the specific charges of immorality brought by the plaintiff against Mr. Leadbeater. They are referred to in paragraph 5 of the

plaint and are described in the particulars delivered in pursuance of the order of the learned Judge. As regards the second charge I doubt whether

the Statements of witnesses who speak to what Lakshman told them are evidence. It seems to me that this charge really depends upon the

evidence of Lakshman who was called as a Court witness. His evidence is to be found at page 278 of the printed papers, (a previous statement in

writing as to what he said he saw is to be found in Ex. VII) and it is quite clear that his evidence is insufficient to support a charge of an unnatural

offence or any act of gross indecency on the part of Mr. Leadbeater. With regard to the first charge the plaintiff''s evidence, if true, would establish

that Mr. Leadbeater had been guilty of grossly indecent conduct in connection with the elder boy. The evidence given by the plaintiff in the

examination-in-chief at the trial with regard to this is in accordance with the evidence of Mrs. Van Hook who was called by the defendant. It is

also in accordance with the evidence of Mr. Bhagavan Das who was examined on Commission as to what the plaintiff told him. The defendant

denied that, when she returned to Adyar in April 1910, the plaintiff told her anything about what he had seen himself. Much was said on the hearing

of the appeal with regard to the alteration in the dates with reference to the charges. The evidence of the witnesses who spoke to the report made

to them by Lakshman would fix the date of the incident, which is made the foundation of the charge of unnatural offence as prior to the date, when

Ex. A was signed by the plaintiff. The plaintiff''s case is that, although the evidence of these witnesses as to the character of Lakshman''s report to

them is true, their evidence is untrue with regard to the date when Lakshman said he witnessed the occurrence and that the date when Lakshman

said he witnessed the occurrence was subsequent to the signing of the agreement, I need not discuss this question, because, assuming the

statements of these witnesses with reference to what Lakshman told them are evidence at all which I doubt, the evidence is in my opinion

altogether insufficient to establish the offence charged in paragraph 2 of the particulars. Although Mr. Lead beater was not, and could not well be

represented before us, the defendant has taken upon her shoulders the burden of Ms defence with regard to these charges. She discharged the

task of defending him with extreme zeal and with great ability. She sought to show that, in view of the changes in the alleged dates and of the

variation in the character of the alleged offence, no Court of Law would hold Mr. Leadbeater guilty either of an unnatural offence or of grossly

indecent conduct in connection with the elder boy. One thing she did not do. She did not place before the Court the evidence of the boy himself.

But speaking for myself, having regard to her strong affection for the boys which I do not doubt and to the nature of the charges, I do not think she

can be blamed for not putting the boy into the witness box. Of course I do not overlook the fact that the defendant no doubt realised that by

bringing the boys to Madras she would have sacrificed the advantageous position which she holds so long as the boys remain in England. I will say

nothing more with regard to this part of the case because I am not prepared to differ from the conclusion of the learned Judge that for the reasons

stated in paragraphs 5 to 12 of his judgment the 6th and the 7th issues should be answered in the negative. I am not, '' however, altogether in

agreement with the view expressed by the learned judge that it was the plaintiff''s knowledge that his surrender of the rights of guardianship

contained in Ex. A. was irrevocable which induced him to search for something which would influence the Court in revoking the agreement and so

caused the revival of charges similar to those made against Mr. Leadbeater in 1908.

This brings me to the question as to how far the fact of these charges that were made by the plaintiff can be reconciled with good faith on his

part and a simple-minded desire, whether mistaken or not, to do what was best for the welfare of his boys. The question as to how far the plaintiff

acted in good faith is, of course, of the greatest importance with reference to the question of the boys'' welfare, because it is obvious that their

interests would be greatly prejudiced if they were handed over to the guardianship and custody of a man prepared to make charges of this

character in connection with his boys knowing them to be false. It was pointed out that as regards the second charge the evidence, even if true,

would only establish indecent behaviour and this was relied on as, showing that the charges were made wantonly and maliciously and with the

knowledge they were false. It has been suggested that the plaintiff, is a tool in the hands of those who desire to injure the defendant. I may refer to

the evidence of the plaintiff in pp. 239, and 278. I will assume that the plaintiff is, to some extent at any rate, being made use of by others who

supply the sinews of war and who have their own ends to serve. This, in itself, is not incompatible with the plaintiff being actuated by an honest

desire to do what he now conceives to be, although his views might formerly have been otherwise, for the best interests of his boys. Very great

stress has been laid by the defendant upon the fact that the plaintiff made a criminal chararge of a very revolting character in which his own son was

involved. I am not impressed by this. If the father honestly believed that somethings have happened which would justify the second charge, he was

placed in a terrible predicament. If he sought to bring the man to justice he exposed himself to the accusation that he was bringing a charge against

the child; if for the sake of saving the child he did nothing, he exposed himself to the accusation of allowing a terrible crime to remain unpunished.

From the very nature of the offence he could not do anything without implicating the boy. The plaintiff in cross-examination said (p. 245) "" My

accusation was against Mr. Leadbeater. associating with the boys and not against the boy himself. I never said anything against my boy. My

complaint was against Mr. Leadbeater.

It appears to me that there are undisputed facts which might not unreasonably have given rise to serious suspicions against Mr. Leadbeater. I

do not say that his conduct was criminal; I do not say that acts of gross indecency have been proved; but I do say that, in my judgment, his

behaviour in connection with these boys was unseemly and indecorous. In this matter I will take the evidence of Lakshman, the defendant''s own

servant, who is still in her service, and the evidence of the defendant''s witnesses. According to Lakshman, he saw the elder boy and Mr.

Leadbeater in the bath-room, the boy was naked and Mr. Leadbeater''s coat was up to the waist and he had no pyjamas (witness apparently

indicated the length of the shirt half-way down his thigh). In examination-in-chief, Mr. Leadbeater said (p. 367.):

Q--Through that time, 1909, I want you just to remember the succession of events about the bath-room. Where did the boys first bathe when you

knew them ?

A.--At a well in Vasantatnantapam within the headquarters.

Q.--What did that lead you to do ?

A.--It eventually led me to offer the use of my bathroom in place of it.

Q.--So that they bathed in your bath-room for a time ?

A.- Yes.

Q--Now, will you say please quite frankly, what changes were introduced in their bath ?

A.--I introduced carbolic soap and hot water for the hair, and taught them to bathe in the ordinary English way so as to be really clean.

Q.--And that means as regards -the bather:

A.--That he soaped himself all over.

Q.--Dressed or not ?

A.--Quite undressed, certainly.

Q.--Were you fully dressed ?

A.--I had nothing to do with it, except on two occasions when I went in and superintended."" Mrs. Van Hook said in cross-examination (p. 329)"" I

know that Mr. Leadbeater took the boys into his bath-room and said that he should teach them how to bathe like gentlemen."" It seems to me that

it did not come within the province of Mr. Leadbeater, a gentleman of over 60 years of age, as tutor and spiritual adviser of these boys to

superintend privately '' and personally their bathing arrangements.

The character of the suspicions--to put it no higher--which the plaintiff entertained against Mr. Leadbeater was such that it may well be that the

plaintiff''s mind was disturbed and thrown off its balance, and that he lost the power to see things and judge things in their true proportions, and to

exercise a sound judgment with reference to any conclusion which he might come to. As I have said I think the plaintiff knew a great deal more

about the nature of the charges brought against Mr. Leadbeater in 1906 than he was prepared to admit. This, in fact, is the defendant''s case. With

his knowledge of Mr. Leadbeater''s history in this connection, it is scarcely extraordinary that a man whose mind had possibly become a little

morbid by reason of the atmosphere of mystery and mysticism and alleged extraordinary happenings in which he lived, should have dwelt on

something which he saw objectionable and indecent though not criminal, until he became obsessed with the idea that Mr. Leadbeter''s conduct in

connection with these boys, had been such as to warrant the charge of an unnatural offence. "" Unnatural offence"" for the purpose of the Penal

Code is a technical term. In its non-technical sense it only means something contrary to nature.

One thing is clear, that although the plaintiffs feelings towards Mr. Leadbeater in 191.0 were those of bitter hostility, he entertained for the,

defendant feelings of affection and esteem which remained unchanged till July 1912. On the 23rd January, 1912 we have a letter from him to the

defendant, Exhibit AA2 in which he says (page 117) "" However unkind you may make your external attitude towards me appear to be, I feel quite

certain that you have inside the same love and tenderness you have been showing me during the last three years."" ... ""I shall cling to you as a son to

a mother. Once a mother you are a mother for ever."" There can be no question that the plaintiff demanded the separation of the boys from Mr.

Leadbeater at the end of 1911. The defendant refers to his having rushed up to her room when they were at Benares crying and robbing, and

saying that the boys must be completely separated from Mr. Leadbeater. When the defendant asked '' why'' the plaintiff said he could not tell her,

that, he had told Mrs. Van Hook. This no doubt took place about a year and 8 months after the date, when the incident referred to in paragraph 1

of the particulars according to the plaintiff took place. Having regard to the nature of the alleged incident, the fact that the defendant was a lady,

and the fact that the entertained feelings of respect and affection for Mr. Leadbeater and had placed implicit confidence in him--the delay on the

part of the plaintiff in making any communication in the matter to the defendant doss not see n very extraordinary. His story that he preferred to tell

Mrs. Van Hook who is a Doctor does not seem to be unnatural. The plaintiff seems to be a man of no particular strength of character, emotional,

possibly somewhat hysterical, and swayed one way or the other by the impulse of the moment. His temperament would seem to be reticent and

retiring. The difficulty which, according to the evidence, Mrs. Taylor experienced in obtaining the data of the biographical notes which she desired

to publish about the elder boy shows the plaintiff was a man who did not desire to court publicity or notoriety. The final rupture with the defendant

meant the sacrifice of a friendship which he evidently greatly valued, the abandonment of all advantages, which he would naturally hope for from his

boys going to an English University, and possibly another scandal similar to that which appears to have shaken the society to its foundations in

1906. In these circumstances can it be wondered at that a man would hesitate before taking a final and irrevocable step.

A point was made that even if the plaintiff could not bring himself to make a communication to the defendant, he might have given information

to Sir Subramania Aiyar, the Vice President of the Society. To my mind the plaintiff''s explanation seems natural. Speaking of Sir Subramania Iyer,

he said in answer to the question:-""Did you not know he would not tolerate such an offence ?

He was no friend of mine nor a man much known to me. I knew he had a great friendship for Mr. Lead beater and thought him a. big man."" He

went on to say "" I was not so much acquainted with him as to know that he would help me. I told him I had a grievance against Mr. Leadbeater.

The letter written by Mr. Leadbeater to the defendant on the 18th April 1910, Ex.Y5 a few days after the date when according to the

plaintiff''s evidence the episode described in paragraph (1) of the particulars occurred shows the existence of feelings of strong hostility as between

the plaintiff and Mr. Leadbeater. We find Mr. Leadbeater writing:-""It is good that old Narayaniah has to work hard at Besant''s Gardens for on the

whole it keeps him out of some of his mischief and gives him less time to brood over imaginary wrongs."" I do not find the explanation given by Mr.

Leadbeater, in his evidence that some quarrel about the boys'' food was the immediate cause of these feelings of hostility of all concerning. It is not

disputed that just at this time, the plaintiff was extremely anxious to get the boys away. In all the circumstances, of this very unusual case, I am not

prepared to hold that the plaintiff''s conduct in connection with the charges against Mr. Leadbeater was of such a character as in itself to show that

he is unfitted to be entrusted with the care and custody of the boys or that it would be detrimental to their interest if they should be restored to him.

I will deal quite shortly with the question whether in January 1912 the defendant gave an undertaking shortly before the boys were taken to

England that they should be kept apart from Mr. Leadbeater. There can be no doubt that when the plaintiff demanded that the boys should be

separated from Mr. Leadbeater at the end of 1911, when the plaintiff told the defendant that he had made a communication to Mrs. Van Hook,

that the defendant refused the plaintiff''s request. As to what happened on January 19, 1912 shortly before the boys were taken to England when

the memorandum (Exhibit XI) was made by the defendant, with the separation of the boys from Leadbeater, the evidence is conflicting. The

learned Judge was unable to hold that on that occasion the defendant declined to give the promise that the boys should never be brought into

association with Mr. Leadbeater. I am not prepared to say that the Judge was wrong. Assuming that he was, it is clear that the plaintiff attached

great importance to this question of separation from Mr. Leadbeater. The memorandum says-"" Mrs. Besant said that he had met Mr.

Narayamah''s wishes on both points (what the two points were is not clear) he had asked for, she had separated the boys from Mr. Leadbeater.

It is also clear that, although at that time the defendant contemplated that the boys would be with Mr. Leadbeater, at any rate for a short period,

she did not so inform the plaintiff. She stated that her reason for not doing so was that she, did not desire the plaintiff to know where the boys were

to be. For the purpose of withholding information from the father as to the whereabouts of the boys it was not necessary for her to refrain from

mentioning the fact which would no doubt, have greatly influenced the father in connection with the question of the boys going to England. As a

matter of fact Mr. Leadbeater as well as the defendant was with the boys in Sicily early in February 1912, for the purpose of some initiation

ceremony in connection with the elder boy.

The question whether, as things now stand, the relative advantages for the boys are on the side of their remaining where they are and continuing

the course of training which has been laid out for them by the defendant, or on the side of their being restored to the care and custody of their

father, is one of great delicacy and difficulty. As regards financial considerations--and in reference to this matter I accept the statements made by

the defendant on the one hand, and the learned Vakil for the plaintiff on the other, adequate provision would seem to have been made for the

maintenance and further education of the boys either in India or in England. I do not believe that there is anything in the personal character of the

plaintiff which disqualifies him from having, the care and custody of the boys. The defendant stated that there was some misunderstanding between

the Judge and herself with regard to her case as to the personal unfitness of the father and his treatment of the boys when they were in his custody.

She said she did not intend by any admission she made to give up her case with regard to the personal unfitness of the plaintiff, or with regard to his

treatment of the boys. The only conclusion I can draw, from the form of issues and the fact that the defendant did not cross-examine the plaintiff

with regard to these matters, is that at the hearing it was not part of her case that, on general grounds, the plaintiff was personally unfit to be

entrusted to the care and custody of the boys. An application was put in by the defendant for leave to adduce evidence on this question, but this

application was not pressed. The plaintiff appears to be a respectable Hindu gentleman and he is a retired Government servant. He was deemed

by the defendant to be fitted to fill the office of Assistant Corresponding Secretary of the Esoteric Section of the Theosophical Society. At one time

he was in entire sympathy with the tenets and beliefs of the Society of which the defendant is the President,. There is no evidence that he is not still.

On the other hand, I do not doubt that the physical training which the boys are now receiving in England is all that could be desired. I do not doubt

that they have the best of tutors for the purpose of matriculating at Oxford. The defendant had stated that her intention is that the elder boy should,

with certain restrictions, take part in the ordinary life of the ordinary under-graduate. If he is not to do this, if he is to lead a cloistered existence

segregated from his fellows, there does not seem much object in sending him to Oxford. Whether his life at Oxford would be a useful or a happy

one, I cannot undertake to say. As regards the younger boy, it is considered desirable that he should take his degree for the purpose of competing

for the Indian Civil Service, It may be that a life of celibacy, which I understand to be an incident of the "" initiation "" that the younger boy has

undergone, may not be incompatible with a successful career in the Indian Civil Service. How for a life of poverty, another incident of the

initiation "" even using the word in the sense of ""inner renunciation"" in which the defendant has told us they are to be understood--how far this would

aid or hinder a member of the Indian Civil Service, I do not feel in a position to express an opinion. In considering this question it is of course

necessary to have regard to things as they stand now, not as they stood when the father purported to surrender the guardianship of his boys. One

of the many difficulties which arises in this case lies in the fact that whereas the elder boy is now over 18 years of age, the younger boy is under

sixteen. I do not think that in any. order which we might make, we ought to distinguish between the cases of the two boys. It seems to me that,

whatever is done, they ought to be allowed to remain together. With great eloquence and with great earnestness the defendant pressed upon us

what she described as the miserable future which awaits the boys if they are to be restored to the custody of their father. There can be no question

that the training which they are aow undergoing in England would make it difficult for them to re-adapt themselves to what was at one time at any

rate their natural environment. Amongst other matters dwelt upon by the defendant it was suggested that ceremonies of a degrading character

would have to be undergone before the boys were to be restored to caste. I fully realise all this, although I think the defendant has overstated the

difficulties which will arise if the boys are restored to the custody of their father. As regards the question of the obtaining of a degree by the

younger boy I should be the last to attempt to belittle the advantages of an Oxford ''degree, but there are Universities in India where academic

distinction can be won and the Indian Civil Service is not the only career in which an Indian gentleman of character and ability may rise high in the

service of the State. I do not overlook the fact that the defendant does not now insist upon her right to remain as guardian of the boys. She is

willing that their care and custody should be entrusted to Mr. G. S. Arundale, a graduate of Cambridge and a former Principal of the Central Hindu

College, who is in close sympathy with the defendant and her Theosophical work. We have been asked in the event of not setting aside the order

of the learned Judge with regard to the guardianship of the, boys, that for the order directing that the boys should be handed over to the plaintiff

should be substituted an order that the defendant should be substituted an order that the defendant should be restrained from doing anything

otherwise than in accordance with law to prevent the plaintiff from enforcing his rights as guardian. On the case as a whole, after long and anxious

consideration, I have come to the conclusion that we ought not to disturb the order of the learned Judge appointing the father the guardian of the

two boys, and that we ought not to interfere with the direction given for the handing over of the boys for the purpose of making the order effective.

The appeal is dismissed with costs. The defendant will pay the costs of the memorandum of objections. The parties will pay their own costs

before Bakwell, J.

Time within which direction is to be carried- out is extended to six weeks from this date.

Oldfield, J.

I concur fully in the conclusions of the learned Chief Justice as to the law and other matters dealt with in his Judgment, and I desire to

supplement the latter with reference only to certain portions of the case.

Firstly, with regard to what has been called the deification of the elder minor, the defendant''s account of what has happened and probably may

happen is in my opinion insufficient. The question is not merely of his immediate adoption of a high ideal, which he is to pursue (with whatever

result) in the future, but firs Sly of his being surrounded by a body of admirers, some of whom have already, as the original written statement says,

begun to prostrate themselves before him, and secondly of his being subjected at an early and impressionable age to influences, which will lead

him, almost inevitably, to an exceptional view of life and an abnormal career and disable him from forming preferences of his own. The English

authorities against the father''s right to insist on a change of religion or of religious environment, Stourton v. Stourton (1857) 8 De. G. M. & G. 760

and In re Newton (1896) I. Ch. 740 bear no application to the case before us, because they deal only with the minor''s ordinary retention of

ordinary tenets, not with his assumption of an extraordinary character, to which the votaries of Theosophy or any other religion do not ordinarily or

deliberately aspire.

Next, with reference to the age of the elder minor and the argument that it was too late for the learned Judge to intervene by requiring his

return, the authority cited by the learned Chief Justice; and obvious considerations of convenience no doubt show that strong reason is necessary

to justify a change, when the normal age of majority is near. But this case was exactly one, in which such reason was available to the learned Judge

because the question was of the boys'' removal, not merely from one educational and social position to another, but also from an environment,

which, certainly before long and possibly in the few months of normal minority remaining, would determine and might arrest his intellectual and

moral development irreparably. I add that I concur in thinking any separation of the minors inexpedient.

There remain only the questions of fact, relating to the two incidents alleged in the particulars and the alleged breach of the agreement between

the parties. I deal with them at length in consequence of the volume and nature of the evidence, and because the learned Judge''s conclusions as to

those incidents seem to me incorrect and his treatment of the case as to the agreement inadequate in material respects. The consideration of the

latter will involve an estimate of defendant''s standard of conduct and motives which will be relevant in dealing with the evidence as to the incidents,

and I therefore turn to it first.

It is common ground that the defendant was permitted to remove the minors from India in consequence of an understanding with the plaintiff.

He contends that it included a condition forbidding them to associate with Leadbeater except in the defendant''s presence. She denies that it did so,

but admits that, if it did so, it was broken since she left Leadbeater and the minors together in Sicily about June or July 1912. The question is

whether this condition was part of the understanding or whether, as defendant alleges, she promised only an immediate separation, expressly

refusing any guarantee against the possibility of Leadbeater rejoining the minors in ''the future.

It is necessary before dealing with the direct evidence to make the positions of those concerned clear. The plaintiff is a theosophist of thirty

years'' standing and has been Assist