SARASWATHI AMMAL Vs. DHANAKOTI AMMAL

JUDGEMENT

(1.) This is an application made under Section 491 of the Criminal Procedure Code. It is in the nature of an application for habeas corpus. The applicant is the mother of the girl who is said to be illegally detained. There was some dispute as regards the age of this girl, and there was conflicting medical testimony on the point. But Mr. A. Krishnaswami Aiyar who appeared for the girl as well as for her step-sister (from whose custody the minor girl was produced) agreed to proceed with the application on the footing that the age of the girl was a little over 17 and under 18. The parties belong to a wealthy Gramani family residing at Kodambakkam outside the Municipal limits of Madras. The members of this family have shown themselves extremely litigious and repeated applications have been made before this Court from time to time in regard to disputes that have arisen between them. It is unnecessary to go into these various matters, because the more essential of the facts can be brought within a very small compass. The applicant left the family house or was compelled to leave it about a year or two ago, and the girl has been continuing to live with her step-sister. Arrangements were recently made to give the girl in marriage to her paternal aunt's son who is also a respondent to this motion, and the mother thereupon applied for a writ to Devadoss, J. who was the Vacation Judge and an interim order was made for the production of the minor as well as restraining the marriage. I must mention that the step-sister has shown herself to be a person of very strong will and that the mother, on the other hand, is liable to be easily led away. I have examined the minor herself with a view to ascertain her own wishes in the matter. She is a full-grown girl and is resolute and self-willed. She expressed her wishes very strongly and stated to me that she would not return to her mother and that she was determined to marry the young man to whom her mother objects. The only relevant allegation made against him is that he is not possessed of any property worth mentioning. He is employed as a Proof Reader in the Government Press and gets a pay of about Rs. 25 a month. He looks healthy and strong, and the girl herself, as I have observed, has a decided preference for him.

(2.) The short question to be decided is, has a case been made out for the issuing of directions in the nature of habeas corpus? It has been repeatedly held in England that the main consideration which ought to weigh with a Court of Chancery is really the question of the welfare of the child. The jurisdiction arises from the power of the Crown delegated to the Court of Chancery and it is essentially a parental jurisdiction, and it is to be exercised for the benefit of the infant. It is also settled law that the word welfare must be taken in its widest sense. The moral and religious welfare must be considered as well as its physical well-being, and due regard must be had to the ties of affection. With reference to all the circumstances of the case the Court makes an order; they relate to the position of the parent, the position of the child and the happiness of the child. There can be no question that this is the law that is administered by a Court of Chancery in England. The Courts in India act on the same principle, and the Guardians and Wards Act (Act VIII of 1890) recognises that the rules that guide the Court of Chancery are applicable in this country. Section 17 enacts that the Court shall be guided by what appears in the circumstances to be for the welfare of the minor, and where the minor is old enough to form an intelligent preference, it is further enacted that the Court may consider that preference.

(3.) A question of law has been raised and as I consider it to be of great importance I proceed to deal with it. The basis of habeas corpus is illegal restraint. If the person that is alleged to be illegally detained is an adult, the case presents little difficulty because he appears before the Court and says either that he has been wrongfully detained or that there has been no wrongful detention. But in the case of a minor he cannot be said to be capable of giving consent, and detention against the wishes of a lawful guardian is prima facie illegal. The consent to which the Court must thus refer is the consent of the guardian and not that of the infant. If therefore the de jure guardian applies for habeas corpus in respect of a child. detained against his will what are the considerations which must guide the Court in determining the rights of the parties ? I have said that the question of the interests and the welfare of the infant is the dominant question, and the Court must dispose of the application with reference to it. But it is argued by Mr. A. Krishnaswami Aiyar that in the case of a boy over 14 and in the case of a girl over 16 the Court has no option in the matter and that the wishes of the infant must be given effect to. He puts his argument in this way. The application deals with the liberty of a subject. If the infant is of an age to exercise a choice or use a discretion and the infant declares to the Court that he is not in unlawful custody, the Court is bound to make no further order than merely to declare him at liberty; only where the person is too young to be competent to choose, the Court makes an order giving the custody to the lawful guardian. The next step in his argument is, that the right to such an election depends upon age and age alone and not on mental capacity. In support of his proposition he chiefly relies upon Queen v. Howes 3 El. & E. 332 : 121 E.R. 467, In re, Andrews 8 QB 153 and the observations of Brett, M.R. in In re, Ayar Ellis 24 Ch D 317.