DISTRICT JUDGE Vs. BASORI LAL

JUDGEMENT

(1.) THIS case arises on a report made by the District Judge, Chhindwara, recommending action for contempt of Court against one Basorilal and his son-in-law Mohansao in the circumstances mentioned below. One Bharatlal was, on his application, appointed a guardian of the person of a minor girl by name Deoki, aged 11 years, who is his niece, with a view to prevent her marriage, arranged by her father Basorilal, with a man of over 40 years. The District Judge while appointing Bharatlal as the guardian of the minor girl made an order of injunction restraining the parents of the minor from performing her marriage without his permission. That order was passed on 5th April 1935. It appears that the obstructive tactics of Basorilal, the girl's father, embarrassed Bharatlal to such a degree that he found his position untenable and requested the District Judge to relieve him of his liability. As the girl had gone back to her father and was disinclined to remain in the custody of Bharatlal, the District Judge passed an order terminating his guardianship. The father having obstinately declined to be appointed as guardian, the Court declared that the minor was the ward of the District Judge incumbent. The minor was left in the custody of her father with a clear admonition that he was not to perform her marriage without the District Judge's permission. That order was passed on 4th December 1936. On 23rd January 1939 a Social Reform Association (Shri Digambar Jain Navyuvak Mandal Chhindwara) presented an application against Basorilal and Mohansao stating that the girl had been married to Mohansao who was over 40 years of age and that he had done so with full knowledge of the prohibitory order passed against Basorilal and it prayed for appropriate action against both the individuals for disobeying the Court's order. The District Judge made an enquiry and found that the allegation that Mohansao was aware of the prohibitory order was true. He was of opinion that Basorilal and Mohansao being guilty of deliberately disobeying the prohibitory order were liable to be punished for contempt of Court.

(2.) THE first point that arises for consideration is whether the District Judge himself could not lawfully deal with the case as one of a wilful disobedience to his own injunction. In Deokisan v. Asaram (1933) 20 AIR Nag 62 it was held that an interim order prohibiting the marriage of an infant was authorized by Section 12, Guardians and Wards Act, and that such an order when passed would be deemed to have been issued under Order 39, Rule 2(1) read with Section 141, Civil P.C., with the consequence that a breach of the prohibitory order is liable to be punished by the District Judge under Order 39, Rule 2, Sub-rule 3. It may be conceded that Section 12, Guardians and Wards Act, authorises an issue of an interim prohibitory order, as was passed in this case, but the question whether it is liable to be dealt with under Order 39, Rule 2(3), Civil P.C., is not free from difficulty. The first proposition receives support from Harendra Nath Chowdhury v. Brinda Rani Dassi (1898) 2 CWN 521, In the matter of the Petition of Kashi Chunder Sen (1882) 8 Cal 266 and Murari Lal v. Mt. Saraswathi AIR 1925 Lah 358. In these cases the question whether or not the breach of the interim order is liable to be punished by the District Judge himself did not arise for decision. In Bai Hani v. Bhailal Chunilal AIR 1929 Bom 417 the mother had given an undertaking to the District Judge that she would not marry her minor daughters without his permission. The mother was not discharged from guardianship and consequently her case was regarded as falling within the purview of Section 43(1), Guardians and Wards Act, so as to be amenable to the application of Sub-section 4 of that Section which empowers the District Judge to visit the disobedience to his prohibitory order the same penalty as is prescribed in Order 39, Rule 2(3), Civil P.C.

(3.) TH December 1936. There was no disobedience on the part of the legal guardian; Section 43 could not therefore come into play. Nor, on the other hand, could Order 39, Rule 2 (3), Civil P.C, be made applicable even by resorting to Section 141, Civil P.C., unless any party to the proceeding had invoked the disciplinary jurisdiction of the District Judge. As pointed out in Kochappa v. Sachi Devi (1903) 26 Mad 494 the powers conferred by Section 493, Civil P.C., 1882, (corresponding to Order 39, Rule 2) are exercisable only when the Court is set in motion by a party who is aggrieved. It was made clear in that case that the use of the word "disobedience" in that Section would not enable the Court to treat a breach of the terms of an injunction as an offence. It is true that in the present case the District Judge acted on the application made by the Mandal (association) but the Mandal was neither a party to the proceedings nor a party aggrieved by the breach of the prohibitory order except in a broad if not a loose sense. 4. The Association was not directly or indirectly concerned with the lot of the poor girl and they had the same interest in her as they would have in innumerable others placed in her situation. That body was prompted by the benevolent motive of checking the evil custom of infant marriage prevailing in their community and was in no way affected in a way as a party to a suit or a proceeding would be. They no doubt deserve credit for exercising vigilance and reporting the case of disobedience to the District Judge and in that they have indeed rendered service to the cause of social reform. They however go out of the picture as soon as they bring the matter to the notice of the District Judge leaving him to take such action as he might deem it just and proper. The proceedings initiated by the District Judge were in reality suo motu and could not be regulated by the provisions of Order 39, Civil P.C., on the view taken in Kochappa v. Sachi Devi (1903) 26 Mad 494. It may however be contended that the strict view taken in the cited case is calculated to hamper the District Judge in dealing with flagrant cases of disobedience by the guardians. I appreciate the force of the contention which is supported by Ramasami Chetti v. Lakshmi Achi (1913) 24 MLJ 231. There is a substantial difference between a Court issuing an injunction in ordinary cases directly under Order 39, Civil P.C., and a Court exercising powers under the Guardians and Wards Act in the interests of a minor. That Act gives wide powers to the Court for the effective protection of the minors brought under its supervision. Both Sections 12 and 43 of that Act in terms enable the Court to make any order suo motu in the best interests of the minors. Consequently, it is open to the Court to pass a prohibitory order suo motu under either of those Sections unlike Order 39, Rule 2, Civil P.C. If so, it must be equally open to the Court to deal with disobedience to such order suo motu.