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1870

QUEEN

v.

IN THE MATTER OF

SUNDARI

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 DEBI, 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.

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IN THE MATTER OF

DEBI, alias MANI.

brother, Chandra Sekhar Sen, in the presence of the said John

1870 Mathuramohan Hazra and my wife, assured her that a wealthy

QUEEN zemindar was most anxious to marry her; but to this, as to all

VAUGHAN. 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 brotherto 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

V.

IN THE MATTER OF

SUNDARI

alias MANI.

Debi replied :-“ Mother, I cannot and will not tell this lie;" and QUEEN again expressed her determination not to return to her mother's Vaughan. 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 deDEBI, tained, 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 ses 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

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1870

QUEEN

v. VAUGHAN,

IN THE MATTER OF

alias MANI,

entitled to be of age of discretion-In re Alicia Race (1); that the return was insufficient in merely stating her age; the time and place of birth should be clearly stated; that affidavits might be admitted to controvert it-In re Hakewill (2) per Jervis, C.J.; In re Dime (3). [PAEAR, J.-In In re Leonard Watson (4), S. M. GANESH Lord Denman refused to admit affidavits to controvert the truth DEBI, of any part of the return.] In In re Alicia Race (1), affidavits were used. [Phear, J.—That was on a rule; the affidavits came before the Court as part of the rule.] The parties making the return cannot be able to judge of the age of the girl so well as her mother. The return is ambiguous; it should have been supported by affidavits to clear the ambiguity; and it cannot now be amended-Reg. v. Roberts (5). The girl should properly be in the custody of her parents. The age of discretion of a Hindu is sixteen years. The criminal law makes it a penal offence to take a child from the custody of her guardians under a certain age, and the guardians may claim her back if so taken under that age— O'Connor's case (6), Queen v. Howes (7), which last case was decided on the Statute 4 & 5 Phil. and Mary, c. 8, s. 3.

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Mr. Ghose on the same side.—A girl under sixteen ought to be made over to her guardians-see Brejonath Bose's case (8), where a boy was ordered to be given up to his guardians against his own wishes. A decision to the same effect was made in Queen v. Nesbitt (9); Queen v. Ogilvie (10) decided the contrary, but that case has been overruled, and it is the only authority of the kind in this Court. In re Hemnauth Bose (11) extended the principle to boys of sixteen, and we have in our favor also a Madras case-Inre Culloor Narain Swamy(12); the English authorities are also in our favor-King v. De Manneville (13), In re Hakewill (2), In re Clarke (14), In re Elizabeth Daley (15), Queen v.

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1870

v.

IN THE MATTER OF

SUNDARI

alias MANI.

Howes (1). In King v. Greenhill (2), it was held that age, and

, QUEEN not discretion, was the criterion. By Hindu law the guardianVaughan. ship of the girl is in the mother.— Vyavashta Darpana, 216.

“ If the husband's family become extinct, or contain no male, or S. M. GANESH “ be helpless, the kin of the widow's father are her guardians.” DEBI, -2 Colebrooke, page 384. “ The rights of Hindu parents are

not to be “invaded.”—21 George III., c. 70, s. 18. The sex of the child is an additional reason why she should be handed over to her parents. Of a woman it is said :—“Their fathers protect them in childhood ; their husbands protect them in youth; their sons protect them in age; a woman is never fit forindependence.”— Menu, Ch. V, s. 148. Under Act XL of 1858, the girl is a minor until the age of eighteen. See the Full Bench decision in Madhusudan Manji v. Debigobinda Newgi (3).

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Mr. Woodroffe, contra.—The Court cannot go behind the return, which must be taken to be true. The statements therein are quite sufficient. As to vagueness, their own affidavits are much more ambiguous than our return. They state the age of the girl to be about thirteen years and nine months, but nothing further is said. No horoscope is produced; and no time and place of birth stated. The return says she is above the age of sixteen years, and this must be taken to be so—2 Hawkin's Pleas of the Crown, 169; Rex v. Rogers (4), In re Leonard Watson (5), R. v. Delaval (6), R. v. Clarkson (7), King v. Greenhill (2), per

Lord Denman. A habeas corpus is not the proper mode of procedure to obtain a decision as to who is the proper guardian for a child; it is granted as a remedy for the invasion of personal liberty. There is no allegation here of want of her consent. [PHEAR, J.—That would be immaterial if she is a minor). My contention is she is not a minor; and her want of consent ought to have been stated--King v. Wiseman (8), Ex parte Landsdown (9), Queen v. Clarke(10). In Queen v. Howes (1), the Judges

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