NAVANITLAL HURJIVANDAS Vs. PURSHOTTAM HURJIVAN

JUDGEMENT

(1.) The petitioner was married to the minor in May 1922. The minor was born on December 29, 1.910, and was, therefore, 11-1/2 years old at the time of her marriage. It may be taken as admitted that in February a March, 1928, the husband and wife lived together as such. Thereafter disputes arose between the minor's father and her husband's father, with the result that in March 1923, the minor having gone to he father's house, lie refused to allow her to go back to her husband. After a long correspondence the husband filed this petition on October 16, 1924, praying that he might be declared to be the guardian of the person and property of his minor wife. It came on for hearing: before the Chamber Judge in November 1924. He questioned the minor in his-chambers when she told him that she was afraid to live with her husband in her present state of health, that her husband and his father had treated her cruelly when she lived with them, that her husband had threatened to treat her cruelly when she returned to his house and generally she asked that some time might be allowed to her. The Judge was of opinion that the girl was in good health and well developed for her age, but although he thought that her answers to his questions were influenced by her father, he adjourned the matter for three months. A short time before the three months expiry, an application was made to the Judge to allow the minor to ho taken out of Bombay on account of her health which was successful, and this matter was not heard again until the closing days of the Easter term in 1925. By the Judge's direction the minor was-examined on April 10 by Dr. Miss Jhirad, and her certificate appears on page 1, Part III, of the printed book.

(2.) I may say at once that it is clear from the evidence that the stories put forward by the minor's father that she was in a poor state of health were absolutely false, and that his main idea was to prevent the matter coming to a hearing. Miss Jhirad's certificate was proof that the girl had arrived at the age of puberty, and the Judge himself was constrained to express his opinion that the minor and her father had told an Untruth when they said that the minor had not menstruated. But the Judge felt that in these days he would not be justified in ordering a fully developed girl who was able to understand her own interest to go- and live with her husband so as to enable him to exercise his marital rights against the wishes of the girl. He did not decide the question of Hindu Law whether the- husband was entitled to the custody of his wife; he merely said that under Hindu Law the husband either was or was not entitled to such custody, and dismissed the petition on what he called a technical ground, by which I presume he meant his own disinclination to order a minor to go and live with her husband against her wishes. Still, after referring to the action of the minor's father in asking for an order of the Court to remove the minor out of Bombay as having been entirely mala fide, with which conclusion I entirely agree, he finished the judgment by saying : "In the view I take of the law I am constrained to dismiss the petition." The matter has now come before us in appeal, seven months after the Judge dismissed the petition, though as a matter of fact the reasons therefor as contained in the judgment were not published till June. The girl will be fifteen in another month, and when the respondent's counsel found that we were in favour of allowing the appeal, he suggested that we should order the minor to be examined again. We saw no necessity for adopting that suggestion. If the minor has not yet attained the age of puberty, that would easily have been proved by the evidence of those who could have kept her under observation since last April, but no application was made to us to admit further evidence.

(3.) It is admitted that in law the husband is the natural guardian of his minor wife; while the opponent is clearly bent on preventing him having the custody of his wife by every possible means.