Dhuma Manjhi and Others vs Emperor

Shearer, J.—This is an appeal by three men, who have been convicted under Sections 343 and 366, Penal Code, and have been sentenced to undergo rigorous imprisonment for five years each. All of them are Santals, and two of them, Dhuma and Chhoto, who are young men in the early twenties, are brothers and belong to Liludih. The other appellant, Sita Ram, who is considerably older, is their uncle and belongs to another village, Kumirdih. Kumirdih and Liludih are apparently within less than a mile of one another. Jaleshwari, whom the appellants are said to have kidnapped, is a girl of about fourteen years of age. On 5th June 1942, she and her two brothers went to a hat to sell rice. In the evening her two brothers remained to watch a cock fight, and Jaleshwari set out for her home with some other men and women of her own village, which was also the village of the appellants, Dhuma, and Chhoto, namely, Liludih. It is said that, when she and her companions had got to Kumirdih, the appellants stopped her and took her to a house nearby, where she remained for some seventy, two hours or so until she was rescued by the Sub-Inspector. It was admitted that the appellant, Dhuma, had in fact accosted Jaleswari in Kumirdih, when she was passing through that village on her way back to her parents house, and had taken, or induced her to go away, with him.

The defence set up was that, in doing this, the appellant, Dhuma, committed no offence, as, sometime previously, the girl, Jaleswari, and himself had gone through a valid ceremony of marriage. It was conceded that, at a festival known as the garukhuta festival, Dhuma had gone up to the girl and smeared vermilion on her forehead. It was also conceded that this incident was resented by the parents of the girl; that, in consequence, a panchaiyat was convened; that, as a result of the panchaiyat, Dhuma had to make a payment of Rs. 34; and that the panchaiyat was followed by a feast. Barsa, the father of the girl, and his brother, Sraban, both insisted that the panchaiyat had merely punished Dhuma for his conduct by imposing a fine on him.

Dhuma, on the other hand, asserted that the payment was a payment made to Barsa and was made by way of dower. On this point he was supported by admissions obtained in cross-examination from one Harma Manjhi. Harma Manjhi not merely said that, the payment of Rs. 34 was made by way of dower, but that dower had been demanded by Barsa and, when it was paid, Barsa had agreed to send his daughter to Dhuma on the next day. He went on to explain that next day Barsa had not in fact sent the girl to Dhuma on the pretext that the day was not an auspicious one. Barsa and Sraban were both very evasive when questioned as to what took place at the panchaiyat and the subsequent feast. The evidence of Harma Manjhi, on the other hand, rings true. It is very unlikely indeed that so heavy a fine would have been imposed on Dhuma, still less that, if it had, the whole of it would have been spent on a feast. Moreover, as will appear presently, the smearing of vermilion by a Santal man, on the forehead of a Santal girl amounts to a ceremony of marriage, and the girl must either go and live with him or take steps to get divorced. The learned trying Magistrate. dealt with the defence, which was put forward, in a very summary manner, merely observing that there was no evidence to show the existence of such a custom as was alleged, and that, in any case, even if such a custom did exist, it was contrary to public policy and could not be supported by the Courts. In point of fact, there was on the record evidence of the existence of the custom in question. Harma Manjhi, for instance, said this:

Even if vermilion be rubbed by force, the girl cannot be given in marriage in biah form, but can be married in sanghai. The forcible rubbing of vermilion constitutes perfect marriage. If the man after this refuses to marry he -will be excommunicated from the caste.

In Appendix VII at pp. 445 and 446 of "The Peoples of India" by Sir Herbert Reisley, Edn. 2, is to be found a discussion of the forms of marriage recognized by the Santals. The following passage is directly in point and may be quoted:

The third form, Itut, is adopted by pushing young men who are not quite sure whether the girl they fancy will accept them, and take this means of compelling her to marry them. The man smears his fingers with vermilion or, failing that, with common earth, and watching his opportunity at market or on any similar occasion, marks the girl he is in love with on the forehead and claims her as his wife. Having done this, he runs away at full speed to avoid the thrashing he may expect at the hands of her relations if he is caught on the spot. In any case the girl''s people will go to his village and will obtain from the head man permission to kill and eat three of the offender''s or his father''s goats, and a double bride-price must be paid or the girl. The marriage, however, is legal and if the girl still declines to live with the man, she must be divorced in full form and cannot again be married as a spinster. It is said that an Itut marriage is often resorted to out of spite in order to subject the girl to the humiliation of being divorced.

Mention of the Itut form of marriage is also to be found in Edn. 2 of the Gazetteer for the district of the Santal Parganas which was published so recently as 1938. In view of what is contained in these two standard works, the evidence of Harma Manjhi ought, I consider, to be relied on, and it ought to be held that, on 5th June 1942, when the appellant, Dhuma, took the girl Jaleswari to the house in which she was, three days or so later, discovered by the Sub-Inspector, they were already husband and wife. That being so, it is obvious that no offence u/s 366, Penal Code, was committed. Mr. Ganesh Prasad Shahi, in attempting to support the conviction, points out that the girl, Jaleswari, had not yet attained puberty. It may well be that, when the husband of a minor girl seeks the assistance of the Civil Court in obtaining the custody of his wife, the Civil Court may, for good and sufficient reason, decline to give him the custody of her and permit her parents to retain her in their custody until she reaches maturity. But it by no means follows that, if such a husband seizes an opportunity that presents itself to him of taking his wife into his own custody, he commits a criminal offence. A husband becomes the lawful guardian of his wife as soon as the marriage ceremony has been performed, and it is immaterial whether or not his wife has then attained puberty. That being so, Barsa Manjhi had ceased to be the lawful guardian of his daughter, Jaleswari and, when Dhuma came across her and insisted on her going with him, he did not commit the offence of kidnapping. Mr. Ganesh Prasad Shahi then contended that, even if a conviction u/s 366 or Section 363, Penal Code, were not possible (?), the conviction u/s 343, Penal Code, should be maintained. It is true that Jaleswari made it appear that she had been unwilling to go to Dhuma. In fact she had, she said, attempted to resist and had been shut up in one room and not allowed out until the Sub-Inspector came on the scene and rescued her. For a number of reasons, however, it is, in my opinion, impossible to believe that there was any truth in this story. In the first place, there is the evidence of Dhananjoy Gouri, a resident of Kumirdih who was called in by the Sub-Inspector to act as a search witness. This man said that during the two or three days Jaleswari had been in Kumirdih he had seen her about in the village, going to draw water with other women and had also seen her cleaning the courtyard of the house in which she lived and engaged in other similar household duties.

The evidence of Dhananjoy was, in a way, corroborated by the Sub-Inspector who said that he found Jaleswari and Dhuma sitting together in a room which was open and not locked. Again, it is admitted that, at the moment when Dhuma accosted Jaleswari and took her away with him, Jaleswari was in the company of no fewer than three men and two, adult women. If the girl had really been unwilling to go away with her husband, one would expect some kind of protest to ''have been made by these men and women and some kind of incident to have occurred between them on the one hand and Dhuma and his brother and uncle on the other. There is, however, nowhere any suggestion of anything of this kind having happened. On the contrary, there is the evidence of one Jai Chand Napit who was forced to admit that neither Chhoto nor Sita Ram took any part in the abduction of the girl, and, in fact, were not with Dhuma when he went up to her, but were standing by themselves some little distance away. The indications, to my mind, are that the girl was willing enough to go to her husband, Dhuma, and that she was certainly not confined in the manner in which, she says, she was for the better part of three days before the Sub-Inspector appeared on the scene and took charge of her. It is, in my opinion, impossible to sustain the conviction u/s 343, Penal Code, either. That being so, I would allow the appeals, set aside the convictions and sentences and direct that the appellants, if they are still in custody, be released and set at liberty forthwith.

Meredith, J.

I agree. Mr. G.P. Shahi argued that even if the girl in question was legally the wife of Dhuma Manjhi, nevertheless he might have committed the offence of kidnapping her since she was at the time under the de facto guardianship of her father. He bases this argument on Expln. 1 u/s 361, which is to the effect that

the words ''lawful guardian'' in this Section include any person lawfully entrusted with the care or custody of such minor or other person.

It is true that it has been held that, when a minor is taken from a de facto guardian, the offence of kidnapping may be committed. But a complete answer to the argument is, in my view, to be found in the case of Sheikh Abdul Sovan Vs. Jitendranath Dutta, wherein it was pointed out that though the explanation to Section 361, Penal Code, may extend the accepted definition of the words ''lawful guardian'' under the civil law, yet as against a person who in fact is the civil law guardian of the minor, mere de facto guardianship cannot be set up so as to convict the real civil law guardian of an offence u/s 361.