SARAT CHANDRA NANDAN Vs. GIRINDRA CHANDRA GUIN

JUDGEMENT

(1.) We are invited in this appeal to set aside an order by which the Court below has summarily rejecte and application by the appellant for the appointment of himself as guardian of the person and the property of his wife, Srimati Bibhabati Dasi.

(2.) On the 24 March 1909, the appellant presented an application under Section 10 of Act VIII of 1890. In this application, he stated that his wife was born on the 19 July 1893, that she generally lived with the petitioner in his house, that she was at the time living with her father in the ancestral house of the latter, that her movable properties consisting mainly of ornaments and wearing apparels were with her father, that some of her other movables were with the petitioner, that no guardian of the person and properties of the minor had been appointed by any person or by any Court, and that no application had been made in that behalf. The petitioner further stated that he was a Bachelor of Arts of the Calcutta University and a Law student, and was a proper person to be appointed guardian for the protection of the person and property of his infant wife. This application was apparently not considered by the learned District Judge before it was directed to be registered. It was presented in office and registered as a matter of the course. The usual notices were issued, with, the result that the father of the girl, Girindra Chandra Gain, presented a petition of objection on the 28 of April 190.9. In this petition the father stated that the girl was two years younger than she was stated to be by the husband in his petition, that his daughter bad been cruelly beaten by her husband and that she had been obliged to run away to the house of her maternal uncle in the neighbourhood. The father added that the ill-treatment had been of such a character that there was grave apprehension of danger to her life and safety if she was placed in the custody of the petitioner. On this ground the father urged that the application ought to be refused.

(3.) The learned District Judge directed that the matter should be heard on the 26 of May 1909. Before that date, an application was made on behalf of the father of the girl for the issue of a Commission to examine the minor, this application was apparently presented ex parte, and on the 14 May, an order was made for the issue of a Commission to Babu Abani Nath Sen for the examination of the minor. As soon as the petitioner was apprised of this order, he presented an application on the 18 May, in which he objected to the examination of his minor wife at Chinsura on the ground that this would involve needless expense. He suggested that the girl might be examined at the residence of her father which was in the neighbourhood of the Court premises. There was no suggestion that if the girl was examined on Commission at Chinsura, she might, under improper influences, give false evidence, the only objection taken to the issue of the Commission at Chinsura was based on the ground of unnecessary expense ; to this extent, possibly, the objection of the petitioner was reasonable. But in his application he proceeded to make an extraordinary suggestion, namely, that, for the ends of justice, it was desirable that the girl should be examined by the Judge in his Chamber, and that the petitioner, as her husband, had no objection to such examination of his wife. When this petition of objection was presented to the learned Judge, he for the first time came to consider the application on the merits, and held that it was, on the face of it, taken along with the admitted facts, not a bona fide application. His conclusion in substance was that the application was a device to obtain possession of his wife. In this view the learned Judge forthwith dismissed the application with costs and cancelled his previous order for the issue of a Commission. The petitioner has now appealed to this Court, and on his behalf it has been contended that the District Judge had no jurisdiction to dismiss the application summarily, and that inasmuch as the application had been registered, it was incumbent upon the Judge, under Section 13 of the Guardians and Wards Act, to hear such evidence as might be adduced in support of, or in opposition to, the application. Prima facts, this ground is well-founded, because as was pointed out by the learned Judges of the Bombay High Court in the case of Sayad Shahu V/s. Hapija Begum 17 B. 560, the proceedings under the Guardians and Wards Act are not of a summary character. But, in our opinion, the order made by the learned District Judge was, upon the materials available to him, unquestionably just and should not be disturbed.