1870 QUEEN v. VAUGHAN. IN THE MATTER OF SUNDARI DEBI, alias MANI. had an interview with the girl, and they found she had not discretion to choose for herself, and gave their decision accordingly, and she was delivered up to her father. The cases decided on the Statute 4 & 5, Phillip and Mary, c. 8, s. 3, and 9 George IV, c. 31, s. 20, are immaterial here, as those Statutes apply to unmarried S. M. GANESH girls. The decision in Queen v. Howes (1) fixes sixteen as the age of discretion; but it has not been fixed by any case in this country. Cases under the Penal Code must be decided according to the circumstances of each case, and not by what the age of the girl is. To come to the decisions in this country, the first is Brejonath Bose's case (2), but there is nothing to show that this case actually occurred; it is not reported. Queen v. Nesbitt (3) was decided on the ground that religious differences ought not to be interfered with. But the only question is whether this girl has a discretion to choose where she will go; it is no question of religion. In re Hemnauth Bose (4) is an unreliable decision; it was not followed in a late case in Bombay by Arnould, C. J., see Mayne's Penal Code, s. 361. Queen v. Ogilvie (5) decides the point in our favor on the authority of King v. Greenhill (6), and that case was approved of in the case of Alicia Race (7). By Hindu law, a father is bound to provide his daughter with a husband; if he fails to do so, she may choose one for herself after waiting three years from the time of puberty. The passage from Menu, Chapter V, that woman is never fit to be independent is of doubtful authority, as is shown by its being in italics. Nareda is not an authority in Bengal-Dayabhaga, Chapter XI, section 1. The girl here is above the age of sixteen, and, therefore, at age of discretion. The period of majority is not necessarily co-extensive with the period of discretion. There is no English case in which this has been decided or even considered. The age of majority by Act XL of 1858 is eighteen, but that is no reason why eighteen is the age before which a person may be said not to have arrived at years of discretion. But I contend that eighteen is not the age of majority in this Court, as (1) 30 L. J. M. C., 47. (5) 1 Taylor, 137. (2) Unreported. Cited in 1 Taylor, 139. (6) 4 A. & E., 640. (3) Perry's Or. Cas., 104. (4) 1 Hyde, 111. (7) 26 L. J., Q. B., 169. 1870 QUEEN v. VAUGHAN. IN THE MATTER OF SUNDARI DEBI, alias MANI. Act XL of 1858 does not apply to this Court, but only to the mofussil, see section 29 of that Act and In the goods of Gangaprasad Gosain (1). See also Mangala Debi v. Dinanath Bose (2), in which this seems to be allowed by the Court, as after it had been S. M. GANESH argued that a person between sixteen and eighteen was a minor, the Court called for no reply on that point. This girl should be allowed to use her own discretion as to where she will go. She has received religious instruction for some time, and the Court will not interfere in those matters, or to unsettle any impressions that may have been formed-In re Moore (3). All religions should be alike in the view of the law-Reg. v. Roberts (4). On Mr. Kennedy's rising to reply, Mr. Woodroffe objected and referred to In re Leonard Watson(5), where there appeared to have been no reply, but the Court disallowed the objection. Mr. Kennedy in reply. The return is not binding, and need not be taken as true-2 Hawkins' Pleas of the Crown; Goldswain's case (6). The period of majority has been decided to be eighteen years-Madhusudan Manji v. Debigobinda Newgi (7), and the contrary does not appear to be decided, with respect to this Court, by In the goods of Gangaprasad Gosain (1). On the contrary, MACPHERSON, J., says expressly he does not decide it, and it is not decided on appeal, nor is the point referred to in Mangala Debi v. Dinanath Bose (2). The Court will not fix itself to any particular age, but will look at the capacityKing v. Greenhill (8). For the forms of return in other cases, Brejonath Bose's case (9), Queen v. Howes (10), O'Connor's case (11). The Statute of George III may be taken to be declaratory of the Common Law, and thus might be applicable here-Broom's Constitutional Law, 82; Queen v. Ogilvie (12). The effect of admitting that the girl could change her religion, and had discretion to do so, would be to make Hindu law inapplicable to her, and, therefore, twenty-one (1) 4 B. L. R., App., 43; S. C., on appeal, 5 B. L. R., 80. (2) 4 B. L. R., O. C., 72. (3) 11 Ir. Com. Law Rep., 1. (4) 2 F. & F., 272. (5) 9 A. & E., 731. (6) 2 W. Bl., 1207; 5 Coke, 71. (7) 1 B. L. R., F. B., 49. (8) 4 A. & E., 624. (9) Unreported. Cited in 1 Taylor, 139. (10) 30 L. J. M. C., 47. (11) 16 Ir. Common Law Rep., 112. (12) 1 Taylor, 137. years would be her period of majority-2 Colebrooke's Digest, 284. Mr. Macrae appeared for Ganesh Sundari Debi, but was not heard. PHEAR, J.-On Friday last, at the instance of Bamasundari Debi, the mother, and Chandra Sikhar Sen and Dinanath Sen, the brothers of one Ganesh Sundari Debi, a writ of habeas corpus issued out of this Court, directed to two persons, named Hazra and Vaughan, commanding them to bring before the Court the said Ganesh Sundari Debi, who was said to be illegally detained by them. Ganesh Sundari Debi is now, I believe, in Court, and Messrs. Hazra and Vaughan have made a return to the writ substantially to the effect that they have not detained and do not detain her in their custody; that she is of full age; that she is still with them of her own free will; that they exert no control over her; and that she comes to Court of her own accord, in pursuance of advice given by them. The case is one involving elements which cause it to be a subject of remarkable public interest. In some sense, as the learned counsel for the defendants has mentioned, it necessarily represents a contest between creed and creed, and perhaps race and race; and no thinking man, I suppose, can avoid regretting exceedingly that this event should have occurred. I can readily believe that those gentlemen who are here placed in the unenviable position of appearing to encourage a young Hindu girl, in the determination to sever herself from her mother, her brothers, and the home of her childhood, are deeply conscious of the misfortune into which circumstances have placed them, for I can conceive no greater disaster than this as likely to befal the cause to which they are devoted, and I will say, the yet broader and higher cause which the intelligent portion of the European community has at heart. But with considerations of this sort, I have nothing to do. 1870 QUEEN v. VAUGHAN. IN THE MATTER OF S. M. GANESH SUNDARI DEBI, The writ of habeas corpus ad subjiciendum is in its aim single. It has for its object the vindication of the right of personal liberty. It is issued for the purpose of taking care that no subject of the Queen shall be illegally confined against his will. It is issued on behalf of the person said to be illegally con alias MANI. 1870 QUEEN v. VAUGHAN. IN THE MATTER OF SUNDARI fined. It is not issued for the purpose of lending the arm of the law to any person claiming to have authority over him. It is only where the person confined is under any personal disqualification, that the guardian or protector is looked to in the S. M. GANESH enquiry; and in such a case, the Court considers that it sets the person confined at liberty by handing him over to the charge of his rightful guardian. Therefore, in the matter now before me, I can have no concern with what the mother and brothers of Ganesh Sundari Debi think or desire, until I have ascertained, if the fact be so, that she is not of age or discretion to judge for herself. Then what are the facts before me bearing on this point. I must look to the return, and so far as the facts there appear, I must take them as true. alias MANI. Mr. Kennedy was correct in urging that there are authorities in support of the position that the truth of the return to the writ may be controverted by affidavits; but so far as I am able to discover, and so far as my own experience has gone, those authorities are of very early date, and are not now binding. Later decisions have all gone the other way. In Comyn's Digest (1) it is laid down that the Court must remand a prisoner if the return be sufficient, though false; and in Hawkins' Pleas of the Crown, Book II, Chapter 15, section 78, it is said that "it seems "to be agreed that no one can in any case controvert the truth "of the return to a habeas corpus, or plead or suggest any matter 66 repugnant to it; yet it hath been holden that a man may con"fess and avoid such return by admitting the truth of the "matters contained in it, and suggesting others, not repugnant, "which take off the effect of them." In Ex parte Beeching (2), upon the return to the writ of habeas corpus, it appeared that the person making the return had apprehended and detained Beeching and several other persons, under the provisions of 24 Geo. III., c. 47, and 45 Geo. III., c. 121, on a charge of smuggling; and Abbott, C. J. (than whom no more learned Judge has presided over the Queen's Bench at Westminster) allowed affidavits controverting the truth of the facts as stated for reasons which he gave as follows:-"The object of the Habeas Corpus Act, 31 (1) Title Habeas Corpus, 438 F. (2) 4 B. & C., 136. "Car. II, c. 2, was to provide against delays in bringing persons 66 1870 QUEEN v. VAUGHAN. IN THE MATTER OF SUNDARI alias MANI. making this return is not a person to whom the prisoners have "been committed for any such matter. The habeas corpus in "this case was therefore a writ issuing by virtue of the Common S. M. GANESH "Law, and I think that, under the circumstances, the 56 Geo. III, "c. 100, s. 4, gives the prisoner a right to controvert the return. Lord Tenderden thus placed the right to controvert the truth of the return upon the Act of Geo. III. The distinction in the cases seems to turn on this, namely, that, unless the 56 Geo. III, c. 100, applies (and it does not apply to this country), the return to the habeas corpus cannot be questioned on the occasion of determining the validity of the detention. I think that all the cases cited by Mr. Kennedy and Mr. Ghose tend to confirm that view. If there had been the power at Common Law, the very learned Judges who determined those cases would certainly not have been ignorant of it, and could hardly have felt the hesitation which they expressed in regard to the question whether or not affidavits, repugnant to the return, could, under any circumstances, be admitted. I pointed out, however, during the argument, several modes in which the person making the return may be made responsible for it, and in more than one of these courses of procedure, affidavits are, no doubt, admissible for the purpose of proving falsehood in the return. In one stage of In re Leonard Watson (1), for instance, affidavits were, I believe, used for such a purpose. But while the truth of the statements in the return cannot, as I think, be questioned, it is certainly clear that the return may be amended. It is unnecessary to quote authorities in support of this last position. At the commencement of the case, I allowed this return to be amended, and it is enough to say now that I have more than one decision before me to show I had authority to do so. Then, looking at this return, among other things I find it thus stated:" On the evening of Friday, the 29th day of April last, "S. M. Ganesh Sundari Debi, alias Mani, in the said suit "named, of her own free will and accord, and without any force, (1) 9 A. & E., 731. |