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Judgment
This matter arises out of a proposal of marriage made by Musammat Mustafa Begum in respect of Umatus Sogra, her grand-daughter by her daughter Musammat Kaniz Fatima.
The application was made on the 8th of January 1918 before the District Judge of Muzafferpur.
It appears that Musammot Umatus Sogra''s father and mother are dead, and that in 1914 the District Judge appointed as the guardian of her person and property her paternal grandmother Musammat Abbasi Begum in conformity with the directions contained in the Will of the minor''s father. It is alleged on behalf of Musammat Mustafa Begum that notwithstanding the appointment of a Court guardian the girl has never been in the custody of Musammat Abbasi Begum, that she has since her father''s death continuously resided in the house of Mustafa Begum at Muzafferpur, that she has been educated by her and that she is desirous of marrying one Mohammad Hussain who is connected with the family of Musummat Mustafa Begum.
When the application of the 8th January 1918 was filed by Musammat Mustafa Begum, Musammat Abbasi Begum filed a counter-application before the District Judge objecting to the marriage and suggesting that the girl should be married to Akhtar Hussain, the son of one Nazir Husain, residing at Muzafferpur.
The District Judge on the 17th February 1919 disposed of both applications by an order in which he held that neither the paternal nor the maternal grandmother could be a guardian for marriage under the Shia Law to which the minor is subject.
At this time he also had before him a petition purporting to come from Musamma Umatus Sogra herself and alleging that she had attained the age of puberty and discretion and that she desired to marry Mohammad Hussain. �
In regard to this petition the District Judge ordered an enquiry for the purpose of definitely ascertaining the wishes of the minor, and appointed Khan Bahadur Ahmad Hussain and Moulvi Muhammad Shan, two Pleaders of the Muzafferpur Bar, to make the necessary inquiries. The report of these gentlemen was submitted on the 27th February 1919.
On the 19th March 1919 in consequence of an application made on the 15th of March by Mummmat Abbasi Begum, the District Judge recorded an order refusing to allow Musammat Abbasi Begum permission to cross-examine the two Commissioners, and to adduce evidence for the purpose of showing that their statements of the wishes of the minor were incorrect.
On the 31st March 1919 the District Judge disposed of the application of Musammat Umatus Sogra by an order granting sanction to her proposed marriage with Mohammad Hussain. On the same day he passed an order refusing the prayer of Abbasi Begum for the delivery of the body of Musammat Umatus Sogra to her care and custody.
Against this part of the learned District Judge''s order which purports to have been made u/s 25 of the Guardians and Wards Act, Musammat Abbasi Begum has filed Appeal No. 106 of 1919. Against the order of the 31st March 1919 she has preferred a motion which has been numbered as No 87 of 1919. Against the orders of the 17th February and 19th March 1919 she has preferred the motions which have been numbered 96 and 97 of 1919.
Now the first question to be considered is what are the powers of Musammat Umatus Sogra in the matter.
It has been found as a fact by the learned District Judge that she has attained puberty and the age of discretion. She has, therefore, under the Shia Law an absolute right to marry the man of her choice, subject always to the superintendence, and, if necessary, the veto of the District Judge in his capacity as parens patrim by delegation from the Sovereign.
It is contended by Mr. Khurshed Husain that the Judge has no power to sanction a marriage, though he may always restrain a ward from marking an unsuitable choice. In my opinion the Court has not only jurisdiction but it is its bounden duty, when apprised of a proposed marriage, to examine the fitness of the bridegroom and to advise the ward to the best of his ability. The power to veto the marriage implies necessarily the power to approve, and by recording the order of sanction in the present case he has done nothing whatsoever which can justify our interference u/s 115, Civil Procedure Code, The case is still stronger where the minor herself, although she has made her choice, seeks the advice of the Court as a matter of courtesy, and I take it that the law contemplates that the welfare of the minor demands that no marriage should be performed without previous notice to the Court.
On the point of jurisdiction, therefore, it seems to me that the contention of Mr. Khurshed Husnain is not well-founded and must fail.
The next question is, whether it is a fact that the lady has arrived at the age of puberty and discretion.
Now in revision it is not ordinarily our practice to go into questions of fact; but a very strenuous argument has been addressed to us as to the various irregularities committed by the learned District Judge in appointing the two Vakils as Commissioners and. in accepting their statement without any cross-examination in Court.
It has also been suggested that the proper course was for the Judge himself to'' have ordered the production of the minor in Court so that he might ascertain her wishes at first hand.
Now having regard to the customs of this part of the country and the status of the family to which the parties belong, we take it that it would have been impossible to secure the attendance of the minor in Court or to arrange that she should have been seen by the presiding officer himself. The Court adopted under the circumstances the procedure best suited to the object in view. He appointed two most respectable gentleman who were personally known to him, one of them being a Khan Bahadur and a member of the Legislative Council. From the record of their proceedings I am quite satisfied that there can be no shadow of reason for suspecting that they were actuated by any improper motives in the matter. It appears from the record that Syed Ahmad Hussain, who though not a relation has known the girl from her childhood and is addressed as dada or grandfather, took the girl into a room by herself and pat questions to her; the answers being recorded by Moulvi Muhammad Shafi who was sitting at the door. Nobody who reads these answers can fail to draw the inference that they give an accurate statement of what she said and that they represent her own views with regard to the choice of a husband. A certificate to this effect has also been appended by the two gentlemen themselves. In the statement the girl says that she is sixteen years of age, and on being asked whether she wishes to marry the eldest son of Qasim Mian or the youngest son of Nazir Mian and on being warned that her choice would affect her whole future and was to be made after the most anxious consideration, she answered, "I would like to make a marriage with Qasim Mian''s eldest son." She was then asked whether she had spoken under the influence of any one else, that is to say, her paternal or maternal grandmother, and her answer again was, "No. I have said so of my own free will."
Under these circumstances it is impossible to hold that the learned Judge was not right in believing that the considered decision of Musammat Umatus Sogra was to marry Mohammad Hussain and to refuse the proposal of Akhtar Hussain.
As to her age and as to the fact of her having attained puberty, the report gives adequate grounds for holding that the finding of the District Judge was correct.
Under these circumstances the suggestion that we should remit the case for the examination of witnesses in Court is one which we cannot accept.
It has been stated by Mr. Khurshed Husnain that Syed Ali Nawab, the husband of Musammat Mustafa Begum, is opposed to the marriage, and that he being the nearest and eldest male relative on either side the omission of the learned District Judge to consult him vitiates his finding.
We have no definite information of the wishes of this gentleman in the matter. If any reliance is to be placed upon the affidavit furnished by Musammat Mustafa Begum, it would seem that he in 1916 was in favour of the marriage. However, we do not attach any importance to his wishes, because the District Judge had jurisdiction to decide upon the suitability of Mohammad Hussain and in the absence of anything to the contrary he has, in our opinion, given a very proper decision. The proposed bridegroom is a B. A. and is reading for the B. L. degree. There is a disparity of about ten years between him and his bride, but this, in the circumstances, is not, a very great disadvantage.
We have been asked by Mr. Khurshed Husnain to prescribe directions as to the procedure which should be followed in regard to proposals for the marriage of wards of Court. We consider it unnecessary to lay down any hard and fast procedure, but we may say that we approve generally of the procedure laid down by their Lordships of the Calcutta High Court in the case of Monijan Bibi v. District Judge of Birbhoom 25 Ind. Cas. 229 : 42 C. 351 : 20 C.L.T. 91 : 19 C.W.N. 290. We have given effect to the principles followed in that case in holding that ordinarily the sanction of the Court is desirable, if not necessary, for the purpose of determining'' the suitability of the proposed bridegroom. The procedure suggested by their Lordships is one which commends itself to reason and is not contrary to law and consequently, in our opinion, it should, wherever possible, be followed.
In this view of the case the applications for revision in Cases Nos. 87, 96 and 97 of 1919 must be dismissed.
With regard to Appeal No. 106 of 1919, no doubt under ordinary circumstances the guardian appointed by the Court would have the right to the custody of the person of the minor; but as she has attained puberty and is of the age of discretion, her marriage with Mohammad Hussain will immediately make Mohammad Hussain the lawful guardian of her person and that being so, it is undesirable that we should direct her to be delivered, into the custody of Musummat Abbasi Begum. There is also the further ground that according to the finding of the learned Judge the girl has for a long time been in the custody of Musammat Mustafa. The petition of Musammat Abbasi Begum does not disclose how or when the girl was removed from her custody, and we think that there is ground for the suggestion of the opposite party that she has not for many years been in the custody of the guardian appointed by the Court.
Taking all the circumstances into consideration we do not think that we should, u/s 25 of the Guardians and Wards Act, compel the minor to reside at present with Musammat Abbasi Begum.
The appeal and the motions are dismissed with costs. There will be one hearing fee in all these matters, assessed at five gold mohurs.