MRS ANNIE BESANT Vs. GNARAYANIAH

JUDGEMENT

(1.) 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.

(2.) 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 at 460 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. and Section 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 at 460 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 at 331 (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. "

(3.) In In re Agar Ellis (1883) 24 Ch. D. 317 at 331 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.