Page images
PDF
EPUB

1870 May 11.

[ORIGINAL CRIMINAL.]

Before Mr. Justice Phear.

THE QUEEN v. VAUGHAN AND ANOTHER.

IN THE MATTER OF S. M. GANESH SUNDARI DEBI, alias MANI.
Habeas Corpus-Minor-Discretion-Return-Affidavit-Amendment.

The return to a writ of habeas corpus must be taken to be true, and cannot be controverted by affidavit. In England, 56 George III., c. 100, s. 4, allows affidavits to be used to controvert the return in criminal matters, but that statute does not apply to this country.

The return to a writ of habeas corpus can, however, be amended.

A girl, under sixteen years of age, has not such a discretion as enables her, by giving her consent, to protect any one from the criminal consequences of inducing her to leave the protection of a lawful guardian; but where the return to the writ of habeas corpus stated that a girl was above the age of sixteen (though her mother stated her to be of the age of thirteen years and nine months), the Court held that she was of years of discretion to choose for herself under whose protection she would remain.

Mr. Ghose in this case had applied for a writ of habeas corpus directed to J. M. Hazra and the Rev. J. Vaughan, ordering them to bring up the body of S. M. Ganesh Sundari Debi, alleged to be a minor under the age of sixteen years. The writ was applied for at the instance of the girl's mother, who, with Chandra Sekhar Sen and Dinanath Sen, the girl's two elder brothers, filed a joint affidavit which stated that the said S. M. Ganesh Sundari Debi was an infant of the age of about thirteen years and nine months; that since her birth, she had been living in the same house with them during the life-time of her father under his control and guardianship; and since his death, about two years ago, under the joint guardianship of her mother and brothers; that she was married, according to Hindu law, when she was about nine years of age, but her husband died a few months after the marriage, and she never lived in her husband's family, or under the protection of any of his kinsmen, either before or after she became a widow, as they had not sufficient means to enable them to take her

1870

QUEEN

v.

VAUGHAN.

IN THE MATTER OF

SUNDARI

DEBI,

alias MANI.

under their guardianship and protection; that she was under the guardianship and protection of her mother and brothers until the evening of the 29th April 1870, when she was induced by one Martha, a native Christian, belonging to the Church Missionary Society, to leave her mother's and brothers' house and S. M. GANESH protection, and had not since returned; that they had found that she was in the custody of J. M. Hazra, a native convert, and of the Rev. J. Vaughan, at the Church Mission premises, at Amherst street in Calcutta, and had applied to them to return her to her house; but that J. M. Hazra and the Rev. J. Vaughan had refused to allow her to be removed, and still detained her from their custody and guardianship against their consent and against the consent of her husband's kinsmen; that they were informed and believed that J. M. Hazra and the Rev. J. Vaughan had induced her to abjure the Hindu religion, and made her a convert to Christianity, although she was still a minor, and incapable of forming a correct judgment in matters of religion; that they were informed and believe that it was the intention of J. M. Hazra and the Rev. J. Vaughan to marry her forthwith to some person professing the Christian faith; although, being a minor, she was incapable of exercising a proper discretion as regards her marriage; and that they were desirous that the girl should remain under their care and guardianship until she attained her majority, and not in the custody of any person or persons without their consent.

A writ of habeas corpus was therefore issued, to which the following return was made:

"John Mathuramohan Hazra, and James Vaughan, a clerk in holy orders, employed by the Church Missionary Society, at Amherst street in Calcutta, the persons to whom the writ hereto annexed and marked A, subscribed with our initials is directed, do severally hereby certify and return to our sovereign lady the Queen in her High Court of Judicature at Fort William in Bengal; that, before the coming to us of the said writ, to wit, on the evening of Friday, the 29th April last, S. M. Ganesh Sundari Debi, alias Mani, in the said writ named, of her own free will and accord, and without any force, threat, persuasion, or inducement used,

1870 QUEEN

v.

IN THE

MATTER OF

SUNDARI

DEBI,

alias MANI.

offered, held out by us, or either of us, or by any person or persons employed by us, or acting under the authority or direcVAUGHAN. tion of us, or either of us, to our or either of our knowledge or belief, came to the mission premises at Amherst street aforesaid, S. M. GANESH and then being of an age and condition at which she lawfully might and could choose and determine her own place of residence, did, in the exercise of her own discretion, thenceforth remain and reside without any restraint whatsoever; that the age of the said S. M. Ganesh Sundari Debi, on the said 29th of April last, was (as she herself avers) (1) upwards of sixteen years, that is to say, of the age of seventeen years or thereabouts; that the condition of the said S. M. Ganesh Sundari Debi was that of widowhood; her husband to whom she was married at the age of nine years, having died about eight years ago; that she was and is childless, and had not, previous to the said 29th of April, at any time lived with the family of her deceased husband or under their protection; that her father being dead, she resided with her widowed mother; that after the said S. M. Ganesh Sundari Debi came to the said mission premises, and whilst so residing therein as aforesaid, her said mother and her brothers and friends had free access to her, and saw and conversed with her frequently, and we have in the presence of her said relatives and friends, or some of them, repeatedly informed the said S. M. Ganesh Sundari Debi that she was at perfect liberty to return to her mother's house, as she was by her said relatives and friends required to do, if she felt so inclined, but she invariably refused so to return; and in answer to the various threats urged against her remaining at the said mission premises, and the various premises and inducements held out to her, on condition of her quitting the same, by her said relatives and friends, she constantly expressed her determination to remain at the mission premises, and there to be admitted by baptism into the Christian religion, which, after upwards of three years' study and instruction therein, with the knowledge of her said mother, she had resolved to embrace; that among the inducements so held out to her as aforesaid by her said relatives and friends was marriage; and that the mother and the elder

(1) The Court at the hearing allowed these words to be struck out.

1870

QUEEN

v.

VAUGHAN.

IN THE MATTER OF

SUNDARI

DEBI,

alias

MANI.

brother, Chandra Sekhar Sen, in the presence of the said John Mathuramohan Hazra and my wife, assured her that a wealthy zemindar was most anxious to marry her; but to this, as to all other inducements held out by them, she turned a deaf ear; that we, nor either of us, nor any person employed by or acting S. M. GANESH under the authority of us or either of us, have or has not ever designed to marry the said S. M. Ganesh Sundari Debi to any person, either with or without the consent of her mother, nor save as aforesaid, was the subject of marriage ever mentioned to our knowledge or belief to her, the said S. M. Ganesh Sundari Debi; that on the afternoon of Tuesday, the 3rd of May instant, the mother of the said S. M. Ganesh Sundari Debi came to the mission premises, and there saw and conversed with me, the said J. M. Hazra, and my wife, and entreated us not to permit the said S. M. Ganesh Sundari Debi's elder brother (who had, within the day or two preceding the said 3rd of May, become almost beside himself with rage) to approach her, alleging that he had vowed that, rather than let her be baptized, he would conceal a knife in his clothes, and stab his sister; that on the same evening, at her urgent request, the said S. M. Ganesh Sundari Debi was admitted by me, James Vaughan, into Christ's religion by baptism; that on the following morning, the said S. M. Ganesh Sundari Debi's mother, who had been informed of her daughter's said baptism by a Bengali letter written by me, James Vaughan, and addressed and sent to her, came to the said mission premises, accompanied by the brother of the said Ganesh Sundari Debi, and a number of influential members of the Brahmo Somaj, with the leader of which somaj the said S. M. Ganesh Sundari Debi is connected, and her mother and brother endeavored to persuade her to return with them; that the said S. M. Ganesh Sundari Debi refused to do so, and again and again positively declined to accompany her said mother and brother to their house, although she was at perfect liberty so to do, and has since remained and resided of her own free will at the said mission premises; that on Saturday, the 7th May, the mother of the said Ganesh Sundari Debi, in the presence of me, J. M. Hazra, and my wife and mother, again saw her said daughter, and urged her to say that she was only fourteen; but the said S. M. Ganesh Sundari

1870 QUEEN

V.

VAUGHAN.

IN THE MATTER OF

SUNDARI

DEBI, alias

MANI.

Debi replied:-" Mother, I cannot and will not tell this lie ;" and again expressed her determination not to return to her mother's said house; that we, nor either of us, nor any persons employed by us or either of us, or acting under our or either of our authority S. M. GANESH or direction, to our knowledge or belief, have not nor has detained, nor do we, or any person so employed or acting as aforesaid, now detain, in our or either of our or his or her custody, the said S. M. Ganesh Sundari Debi; but being of such age and condition as aforesaid, she of her own free will and unbiassed discretion lives and resides at the said mission premises which are under the care and superintendence of Mr. James Vaughan, in and with the family of Mr. J. M. Hazra, which consists of myself, my wife, and one child of the age of seven years, as a member thereof in my J. M. Hazra's house, situate within the said mission premises; and that having requested the said S. M. Ganesh Sundari Debi to accompany us, and she having consented to do so, we have here now the body of the said S. M. Ganesh Sundari Debi before our sovereign lady the Queen's said Justices, as by the said writ hereto annexed, and the order enlarging the time for making this our return we are commanded. Dated this 10th May in the year of our Lord 1870.

(Sd.) J. VAUGHAN.

J. M. HAZRA.

In obedience to the writ, Ganesh Sundari Debi was brought into Court, and the present application was that she should be delivered over to the custody of her mother.

Mr. Kennedy, Mr. Ghose, Mr. Evans, and Mr. Mendes, in support of the application, contended that the mother was by law entitled to the custody of her child, and that she had been properly brought up under a writ of habeas corpus; and being a minor, should be delivered into the custody of her parents-Queen v. Nesbitt (1), King v. De Manneville (2). In that case it seems to have been thought that eighteen was the age at which a person was

(1) Perry's Or. Cas., 103 and 108, note. (2) 5 East., 220,

« PreviousContinue »