MUHAMMAD WAZIR AGHA Vs. MUHAMMAD ABDUL GAFOOR

JUDGEMENT

(1.) JACKSON , A.J.C. 1. In this case the appellant, Mohammed Wazir Agha, has been directed to be detained in the civil pri-son for a term of one month under Order 39, Rule 2, in Schedule 1, Civil P.C. The proceedings arose out of a case under the Guardians and Wards Act. A girl, Rahimatbi, who had been living with the respondent Abdul Gafoor, left his house and came to that of the appellant. Abdul Gafoor applied to be appointed guardian of the girl and obtained a temporary injunction against Mohammad Wazir Agha directing him not to get the girl married pending disposal of the application. The girl, nevertheless, was married on 1st August 1927. Action was then taken under Order 39, Rule 2, against Mohammad Wazir Agha for his disobedience of the Court's injunction after an application for the prosecution of Mohammad Wazir Agha under Section 188, I.P.C., had failed.

(2.) IT has been argued on behalf of the respondent that no appeal lies in this case and reference has been made to Faridbi v. Mohammad Amin [1913] 9 N.L.R. 83. The argument is that the Court in a case under the Guardian and Wards Aot could only act under O. 39, Rule 2, by virtue of Section 141 and that Section 141 relates to procedure only and does not confer a right of appeal. Gabba v. Kanchhedilal A.I.R. 1922 Nag. 62, which was decided by the same Judge as Faridbi v. Mohammad Amin [1913] 9 N.L.R. 83, shows that the latter ruling was not intended to have a very wide effect that the respondent would give it and when the Civil P.C. specifically gives a right of appeal against orders passed under Order 39, Rule 2, I am unable to hold that the appellant is deprived of his right of appeal merely because the lower Court has acted under Order 39, Rule 2, by virtue of Section 141.

(3.) IGNORING the evidence of Nur Mohammad and the tongawala all we have proved is that Rahimatbi got married with the assistance of Mohammad Yusuf, who lives in the appellant's house but is not related to him. I do not for a moment believe the evidence of the girl Rahimathi that she fled alone from the appellant's house, that she met by chance the brother of the man to whom she is now married and told him that she wanted to get married, although she did not know him previously, and that he then arranged for her marriage to his brother; but I do not think that it necessarily follows that the appellant was responsible for the marriage. It is not clear what his interest in the girl was or why he should want to get her married, while it is clear that the girl did not want to go back to Abdul Gafoor's house. It seems to me quite possible and, in view of the Court's injunction, very probable that the appellant did not take any part in promoting the marriage. He may not have done all that he could do to prevent it; but then he was not ordered to prevent the marriage but merely not to arrange for it himself and I am unable to find that he has disobeyed the order as it was passed.