LAWS(PVC)-1911-8-37

SUBHADRA KOER Vs. DHAJADHARI GOSWAMI

Decided On August 30, 1911
SUBHADRA KOER Appellant
V/S
DHAJADHARI GOSWAMI Respondents

JUDGEMENT

(1.) We are invited to set aside two orders made by the Court below on the 11th and the 12th July 1911, under somewhat exceptional circumstances. The first of these orders purports to have been made under Section 45, Sub-section (1), Clause 4(a) of the Guardians and Wards Act, 1890; and the second under Section 43, Sub-section (4) of the same statute read with Order XXXIX, Rule 2, Sub-rule (3) of the Code of Civil Procedure of 1908. It appears that the petitioners before us were appointed guardians of the person of their step-daughter, Bachhi Sahdei, and at the time the order was made, it was directed that the minor should not be married without the consent of her maternal grandfather and without the leave of the Court. The appellants, it is admitted, have got the girl married in violation of this direction. The learned Judge, when apprised of this event, called upon the appellants to produce the minor in Court. That order, however, could not be carried out, because at the time the order was made, the girl was with the family of her husband. The learned Judge thereupon proceeded to impose a fine upon the appellants under Section 45. He also took proceedings against the appellants to punish them on account of their disobedience of the original order and ultimately directed that they should be confined in prison for three months. We are now invited to set aside these orders on the ground that they were made without jurisdiction, and cannot be justified either upon the admitted facts or upon recognised legal principles.

(2.) In so far as the first order is concerned, it has been argued that the case is not covered by Clause (a) of Sub-section 1 of Section 45 of the Guardians and Wards Act, 1890. That clause provides for two cases; namely, first, the case in which a direction has been given under Sub- section (1) of Section 12; and secondly, the case in which an order has been made under Sub- section (1) of Section 25. It is manifest that neither of these sections has any application to the contingency which has happened here. It may further be observed that Clause (a) speaks of a person who has the custody of the minor and fails either to produce him or to do his utmost to compel him to return to the custody of his guardian. It is obvious that in a case under Sub-section (1) of Section 1^, the person who has the custody of the minor has not yet been appointed guardian, while in a case under Sub-section (.1) of Section 25, the person against whom the disciplinary action is taken is clearly one other than the guardian to whose custody the minor is to be returned.1 It is obvious, therefore, that the order of the learned Judge for the production of the minor in Court was not made either under Sub-section (1) of Section 12 or Sub-section (1) of Section 25. Consequently, Section 45 has no application, and the order must beset aside as made without jurisdiction.

(3.) In so far as the second order is concerned, the learned Counsel for the appellants has contended that it must be set aside on three substantial grounds: namely, first, that this is not a case contemplated by Sub-section (4) of Section 43, because the learned Judge could no longer seek to enforce his original order which plainly could not be enforced after the marriage of the minor had taken place; secondly, that the order is bad, because it was not competent to the learned Judge to give any directions to the guardian as regards the marriage of the infant; and thirdly, that as the proceedings for the appointment of the guardian were in their entirety without jurisdiction, a violation of an order made without jurisdiction could not render the appellants liable to be punished under Sub-section (4) of Section 43.