Straight, J.:— This is an appeal from an order of the officiating District Judge of Allahabad dated 21st February 1888, dismissing an application of the appellant, one Sarat Chandra Chakarbati, preferred under Act IX of 1861, for the custody of his minor brother Satya Saran Chakarbati. The connection of the respondents with the matter is stated thus in the petition of the appellant:—“That the respondents being connected with the Jumna Mission School and having got their influence over the said minor, on the 25th December 1887, without the knowledge or consent of the petitioner or other relatives of the said Satya Saran, baptised the said Satya Saran in the Jumna Mission Church, and the said petitioner became cognizant of this fact on the 26th December 1887. That on the 29th December 1887, the said Satya Saran, having intimated by letter to the Said defendants his intention to renounce the Christian religion, the said defendants came to the [215] petitioner's home and demanded from the petitioner the surrender of the said Satya Saran, which the petitioner refused to do. That on the 30th December 1887 the defendants without the knowledge or consent of the petitioner improperly removed the said Satya Saran from the guardianship of the petitioner, and are now keeping him in their custody without any legal authority or permission from the petitioner to do so.”

The respondents in reply to these allegations denied the charges contained therein and that the minor Satya Saran was in their custody or possession, and further asserted that the minor had left his home because his ill-treatment there drove him from it.

The learned Judge disposed of the application upon the following ground:—“The application is for the custody of the minor, and in order to succeed, assuming applicant to be otherwise entitled to the relief he seeks, it was necessary for him to show that the boy was in the custody of the respondents and within the jurisdiction of the Court. This is clearly not the case. He is now at Lahore beyond the jurisdiction both of this Court and of the High Court to which it is subordinate, and it does not appear in whose custody he is, or in fact whether there is any custody at all in the matter. The assistance, pecuniary and otherwise, given by the present respondents does not give the Court jurisdiction. The application is dismissed, but seeing that petitioner had sufficient grounds for believing that the minor was under the respondents' control, respondents will pay their own costs.”

The appeal first came before my brother Mahmood and myself for bearing upon Friday the 22nd March last, and upon that date we had an able and elaborate argument addressed to us for the appellant by Mr. Banerjee, his learned counsel, who was followed by Mr. Alston on behalf of the respondents. At the close of the day's proceedings we intimated to Mr. Alston that his clients would, looking to all the facts disclosed before us, act wisely and in their own best interests if they took steps to produce the minor before us on Friday the 5th April, to which date we adjourned the further bearing. Upon that day the minor was not in attendance, but, an [216] affidavit was filed by one of the respondents, Mr. Forman, to the effect that Satya Saran was at Saharanpur, within our jurisdiction, but that he refused to come to this Court. We therefore caused a summons to issue to Satya Saran, and in obedience thereto he, on Thursday April 18th, appeared before us and we had an opportunity of seeing him, and examining him on oath as well as his brother, the petitioner-appellant. I may add that upon the same date an affidavit of Satya Saran was filed, which in substance came to this, that he objected to return to his brother's house and custody for fear of ill-treatment. At the close of that day's proceedings we took time to consider our judgment, making no order as to temporary custody or guardianship of the minor on his undertaking to appear before us when called upon to do so. I now proceed to dispose of the appeal.

The four questions that arise are, first, was the Judge right in dismissing the appellant's petition for want of jurisdiction second, if the Judge had jurisdiction, was Satya Saran a minor within the meaning of Act IX of 1861 third, if the Judge had jurisdiction, was the appellant a person who could properly apply for the custody and guardianship of the minor fourth, what is the nature of the powers conferred by s. 3 of Act IX of 1861, and what is the proper order to be made in the case?

As to the first question, namely, that of jurisdiction, I am very clearly of opinion that the learned Judge below was wrong. By s. 1 of Act IX of 1861 it is provided that an application made thereunder is to be addressed “to the principal civil Court of original jurisdiction in the district, by which such application, if preferred in the form of a regular suit, would be cognizable,” and by s. 4 it is declared that “in cases instituted under this Act the Court shall be guided by the procedure prescribed in the Civil Procedure Code in so far as the same shall be applicable and material.”

The rules therefore of Act XIV of 1882 regulating the “place of suing” must be looked to for guidance. From the terms of the petition filed by the appellant it is clear that the grounds upon which he claimed the intervention of the Court were, that his [217] brother Satya Saran had by the acts or with the connivance and assistance, pecuniary and otherwise, of the respondents been removed from his custody and guardianship in Allahabad, in other words, that the respondents by what they had done in Allahabad had either removed Satya Saran or caused him to be removed and had thereby infringed the right of the appellant to his minor brother's custody and guardianship. The infringement of such right would, in my opinion, be equivalent to the giving a cause of action for a suit, and in that view of the matter s. 17 of Act XIV of 1882 (Civil Procedure Code) would be the guide, and the proceedings under Act IX of 1861 would be entertainable in the Court of the Judge of Allahabad within the local limits of which the acts of the respondents whereof the appellant complained were charged to have been done. I do not think that the fact that at the time of the trial in the Judge's Court the minor was out of the jurisdiction is of any material importance, if upon the facts stated in the petition it appeared that the defendants were responsible for his removal. As I pointed out at the bearing, to place so narrow a construction upon the statute would render it practically inoperative, and enable persons bent upon defeating it by successive removals of the person of a minor from one place to another to deprive any Court of jurisdiction. Apart from the terms of s. 17 of the Civil Procedure Code, if the exigencies of the case required it, I should have no hesitation in holding that the minor having been in the custody and guardianship of a person within the jurisdiction of the Judge of Allahabad, that officer under Act IX of 1861 had full power to entertain and deal with the application of the appellant. The Judge was, therefore, in my opinion wrong, and if there are materials on the record sufficient to enable us to do so, we must, reversing his order, proceed to deal with the matter on the merits.

The second question is, is Satya Saran a minor within the meaning of Act IX of 1861? It is not denied that at the present moment he is under the age of 18 years, the assertion for the appellant being that he is not yet 16 years of age, while he himself alleges that he is above that age, and I have little doubt that at the time [218] the application was made in the Judge's Court up to end of 1887 and early in 1888 he was under 16. But having seen him and heard his statement upon oath, I am disposed to think that he is now quite 16 and I should say probably 17. He is a strong well developed youth, and from the fact that as far back as March 1887, he passed the University Entrance Examination and speaks English well, it is obvious that his intellectual capacity is considerable. By s. 26 of Act XL of 1858, it is declared that “for the purposes of this Act, every person shall be held to be a minor, who has not attained the age of eighteen years.” That statute made provision for the care of the persons and property of minors having property, and they were made subject to the jurisdiction of the Civil Court. But Act IX of 1861, “to amend the law relating to minors,” in no way abrogated Act XL of 1858, but was a sort of supplement to it, and has to be read along with it. That last mentioned Act contains no section qualifying or altering s. 26 of the former statute. But it appears to me that the law to which we must now look is that to be found in Act IX of 1875, by which with certain exceptions the age of majority is declared to be 18 years. I think therefore that Satya Saran Chakarbati was and is a minor within the meaning of Act IX of 1861. The third question is, is the appellant a person who could properly apply for the custody and guardianship of the minor? For the respondents our attention was called to s. 27 of Act XL of 1858, which says “nothing in this Act shall authorize the appointment of a guardian of the person of any minor whose father is living and is not a minor;” and it was argued that as Jaudub Chandra Chakarbati, the father of the appellant and of Satya Saran, the minor, is alive, this was a direct prohibition to the prayer of the appellant's petition being granted.

However that may be in reference to Act XL of 1858 if it stood alone, no such restriction is to be found in Act IX of 1861, and “any relative or friend of a minor, who may desire to prefer any claim in respect of the custody or guardianship of a minor may make an application.” The petitioner in the present case is the elder brother of the minor, who, until December 1887, lived with the petitioner [219] and his other brother as the member of a joint Hindu family. His father, Jaudub Chandra Chakarbati, is an old man, unable to work from age and weakness, and has gone to Benares to end his days there. The petitioner is employed in the Locomotive Department Clerks' branch of the East Indian Railway, and upon his shoulders has fallen the expense of maintaining and educating the minor, and admittedly be has been doing so. I think under these circumstances, and looking to the terms of s. 1 of Act IX of 1861, that he was competent to put in his petition in the present case and to ask for a certificate of guardianship. Then remains the fourth and last question, namely, what is the nature of the powers conferred by s. 3 of Act IX of 1861 and what is the proper order to be made in the case? I may premise by saying that I have carefully read and considered the evidence of the respondents given in the Court below, and that it leaves no doubt upon my mind that they individually and jointly, if they did not actually instigate him to do so, did countenance and assist the minor in leaving his brother's roof and withdrawing himself from his custody and guardianship. However excellent the motives that animated them, I cannot but regard such a proceeding on their parts as unwise and calculated under other circumstances than fortunately exist here, to cause very grave difficulties and to provoke controversies and mischief, which it should be the object of all of us to avoid, and which happily have not arisen in the present case.

Then I have to consider what in regard to the language of Act IX of 1861 is the proper order to be made? In dealing with this question the terms of the section must be looked at. It says “and thereupon shall proceed to make such order as it shall think fit in respect to the custody or guardianship of such minor.” It might be argued, and indeed it has been suggested by my brother Mahmood, that, under the language of the section, the Court is bound in every case, where it has a minor before it, irrespective of his age and all other circumstances of the case to make some order as to his custody and guardianship. But upon careful consideration of this view I am unable to adopt it, and I think that to put such a construction upon the section would at times place the Courts in positions [220] of great difficulty. For it must be remembered that now we are treating the question of the bare custody and guardianship of a minor possessed of no property. Could it be seriously said that if a person had applied for custody and guardianship of a minor and the Court considered such person unfit to have a certificate, such Court was bound to look about and find some other person, though no one had come forward? I could not adopt such a view for a moment. In my opinion the words I have quoted confer an absolute discretion to make an order as to custody or guardianship, or to refrain from making such an order where the circumstances of the case do not call for such an order being made. This leads me to examine the circumstances of this case and the materials we have before us for the purpose of guiding us in the exercise of that discretion. I have already stated what the personal appearance and apparent intellectual capacity of the minor was whom we examined in this Court, and I do not think for the purpose of throwing light upon the matter that I can do better than read at length his deposition taken before us. It was made in excellent English and with great case and self-possession.

“My name is Satya Saran Chakarbati. Sarat Chandra is my elder brother. He is my own brother. He is about nine or ten years older than I am. I came to Allahabad in 1882 from Lahore. My brother was then employed in Lahore in a merchant's office as a clerk, and left employment, and was going to Calcutta to take up some trade, when we all halted at Allahabad, where he was fortunate enough to get some work, and so we settled here. I came with him. I was born at Lahore, and was bred up to my ninth or tenth year at Lahore. My father had given up his work, and I was living with my brother. He took care of my education during all that time; I mean my brother took care of my education. In 1882, when we came from Lahore, my father came along with us. In 1882 I took up residence in Allahabad with my brother. My brother Sarat Chandra is the managing member of the family. I had no ill-treatment from him during that period when I was under his care. I was very young and, as a matter of course, he used to beat me and my younger brothers. It was for our good. He never tried [221] to poison me, he never wished to put an end to my life in any other manner. He gave me no religious instruction. It was after my baptism that I first left the house. My baptism took place on the 25th December 1887, and I left my house on the 30th December. I fear being badly hurt if I go to my brother. He might beat me or keep me locked up or do anything else of the sort. My mother is living with my brother; she will not do me any harm, she is a loving mother. I would not have left the house but for my brother. She could prevent Sarat Chandra from harming me, but he will not hear her. The feeling that they (the members of my family) have towards me; I entertain towards them. I would like very much to live in Allahabad, but not live with them, unless they be Christians. As my brother has said he does not care for caste, but cares more for me, I think he would not count it a great loss to turn Christian and leave his lodging in the city and take up his residence in the mission compound. I can make up my own arrangement for my food. I can be employed somewhere as a private teacher and go on with my studies. If my brother does not support, I can still pay my own expenses. The exact amount that I should require for such expenses is Rs. 10, three rupees being for my college fees and the balance for my food and lodging. I can get that sum without the aid of my brother. I am not willing to go back to my brother.

“Q.—You have heard what your brother said just now, your old mother is at home, she is crying her eyes out, and your brother says he will not interfere with your religion. What objection have you then to go back to him?

“A.—Since I am a Christian I must have my neighbours Christians. I cannot live with my family because they are not Christians.

“Q.—Have you any real objection to being made over to your brother when we make it impossible for him to harm you?

“A.—I think I shall be more happy if I live away; as they are my well-wishers, why should they object if I live away when by so doing I shall be happy?

[222]“The affidavit was prepared by Mr. Alston; I gave him instructions. The things were of all my own description; I had not written them down. I first mentioned them to Mr. Lucas. I first saw that affidavit this morning and it was read over to me by Mr. Alston. I found what I told Mr. Lucas in the affidavit. There are some things in the affidavit which Mr. Lucas did not show me. I have thought a good deal upon questions of religion and morality and have come to the conclusion that all my ancestors ever since the beginning of things were wrong.

“Mahmood, J.—You have often thought upon questions of morality?

“A.—What do you mean by morality?

“Mahmood, J.—I mean good conduct or ethics.

“A.—I do not know the meaning of the word ‘ethics.’ I have undertaken to change my religion without consulting my brother because so my Lord says. I think I know enough of the Hindu religion and Christianity to distinguish between the two. I was about 15 years when I was baptized.”

The impression left upon my mind by personal observation of the minor and by his evidence was and is that he is well able to take care of himself, and that from the sources provided by his own successful studies he is in a position to provide for himself and to defray the expenses incident to the further prosecution of those studies. I think also that a point not to be lost sight of is that he personally prefers to be left as he is, and that he has ample mental capacity and power of discrimination to make the choice and to judge what is best and happiest for himself. I have already said that, in my opinion, the minor is above the age of 16 years, that is to say, two years beyond the point of age at which s. 361 of the Penal Code provides for the protection of male minors from kidnapping.

This section of course only shows the extent to which the Legislature has thought it necessary to throw the protection of the criminal law over male minors or to restrict their personal liberty [223] of action, and I have only referred to it by way of analogy for the purpose of seeing at what point of age we, in dealing with a case like the present, may in exercising our discretion take into account the fact that the minor has passed the age up to which the criminal law treats him as having no discretion of his own in regard to his personal custody and guardianship. Enough, then, I think, has been said to show why, under the circumstances of this case, I do not feel called upon to make any order for the custody and guardianship of Satya Saran. I may here observe that the appellant-petitioner in his deposition in this Court was asked, “If he (the minor) comes back to your house, are you willing to let him remain with you without any interference with his wishes about his religion?” to which his answer was “Certainly, I am willing;” and at an earlier stage of his evidence he said “I do not care whether my neighbours would approve my doing so or not, or whether my caste men will like it or not, but I am willing to take him back into my family and live with him and keep him.”

The petitioner himself was brought up at a mission school, and he not only countenanced Satya Saran, the minor, going to the Jumna Mission School, but also another of his brothers, and it was clear to my mind from his tone and demeanour, while giving his evidence before us, that his real objection to the action of the respondents did not seriously rest on religious grounds, but was mainly concerned with his having been induced to leave the joint family house and circle, and to withdraw himself from a position that would, if continued, hereafter require him to contribute towards the common family fund from his earnings. For the preceding reasons I dismiss the appeal, but the case is not one in which I feel called upon to make any order as to costs.

Mahmood, J.:— The decision of this case has been delayed partly because of the consent of my brother Straight in reserving judgment to enable me to consider the exact interpretation to be placed upon s. 3 of Act IX of 1861, as to whether or not in cases of this character where custody of a minor is claimed, this Court or indeed any Court to which such application has been made, is bound [224] absolutely to make an order one way or the other as to the minor's custody as distinguished from refraining to make any such order. The question has been matter of much anxious consideration by me, but I have come to the conclusion, in concurrence with my brother Straight's view, that the wording of the section as it occurs there, “and shall proceed to make such order as it shall think fit in respect to the custody or guardianship of such minor” does not necessitate a Court of justice in every case to deliver a minor to the custody of any person, and that, as my brother Straight has stated, the wording is broad enough to enable us to hold that the Court may hold its hand and desist from making any order as to the custody of a minor in respect of whose custody under the circumstances of the case, such as it may be, no such order is necessary.

It is therefore clear that in this case this Court as a Court of appeal from the order of the learned District Judge has jurisdiction within the law to refrain from making any order as to the delivery of the minor to the custody of the petitioner or to the custody of any other person.

Having thus expressed my concurrence with my brother Straight upon this point, which, as I have said, seems to me to be the prominent point in the case, and one of considerable importance, as it would involve the question whether the custody of the minor was to be made over to his brother, the petitioner-appellant, or to the Rev. Mr. Forman, one of the respondents, or to the Rev. Mr. Lucas, another of the respondents, I need only go further so far as the legal aspect of the case requires after the disposal of this question.

My brother Straight has stated that under the definition given in s. 26 of Act XL of 1858, which because it is in pari mitcria can be read with the Minors Amendment Act (IX of 1861), the age of majority would be eighteen years, and my brother has also said that the minor Satya Saran is below that age and as such a minor. My learned brother has also called my attention in his judgment to the applicability of the Indian Majority Act, IX of 1875, which again defines accurately what the age of majority is. Even with reference to the definition contained in that enactment, the minor [223] Satya Saran is a minor, and as such subject to such rules of law as to the custody of minors as may be applicable.

It would be a waste of time to dwell upon the circumstance that before the passing of the enactments to which I have referred the law in British India stood as it did before the accession of the British rule, that is to say, in the case of Hindus the Hindu law was applicable and in the case of the Muhammadans the Muhammadan law was applicable, in respect both of contractual capacity and other matters independent of contract. That undoubtedly was the law, and to this day our Contract Act (IX of 1872) in s. 11 still refers to the personal contractual capacity of the contracting party for purposes of age, as the age of such capacity. Now I have said enough to show a that the present minor had no capacity to enter into any contract, because then it would be necessary to refer to the provisions of the Indian Majority Act (IX of 1875) to indicate what the age of his contractual capacity would be, and that age, as pointed out, would be the age of 18 which the minor has not yet attained. But the question hero is of a vaster description than any question of contractual capacity. What we are called upon to consider is whether or not under the terms of s. 3 of Act IX of 1861, we are to make such decree or order as this Court can make forcing the minor Satya Saran to go into a custody which be declines to enter into, subject himself to a guardianship which he abhors and detests, and to be subjected to such penalties as the disobedience of our mandate would naturally involve under the law. This is the question which we are called upon to consider, and the circumstances of the case have been so fully stated by my learned brother Straight that it would be repeating what he has said if I were to refer to them further. It is clear from them that the boy Satya Saran is not an infant in arms, nor a youth without understanding. He is not an illiterate or an ignorant boy, but has prosecuted his studies in a language not his own and has succeeded to the extent of obtaining such reward as academical success in his position can achieve. By dint of his academical success he had won a scholarship amounting to Rs. 5 a month, and is now in a position to be able to support [226] himself and to be independent both of the petitioner, his elder brother, and the rest of his family for purposes of ordinary sustenance.

Even under circumstances where a precocious intellect would enable a child to achieve academical rewards sufficient to support him or to earn his livelihood otherwise, I should be willing to apply the provisions of s. 3 of Act IX of 1861, and in the exercise of the discretion which a Court has, to force the child to go into the custody of his natural guardians and to subject himself to their control and direction. I would be the more willing to make such an order, because in my opinion both the practice in English Courts and in this country fully justifies us to make such an order, when the reason why the legal custody has been relinquished by the child is either at the instigation or at the advice of persons who are not his legal guardians or legal advisers as to his temporal or spiritual welfare.

But such is not the case here. What I have to consider is, whether this boy is of such an age as to require me in the exercise of such jurisdiction as this Court has to restrict his personal liberty by an order which in its nature at least is not dissimilar to an order passed by a criminal Court practically making him over bodily to the custody of his brother. This is the point which I have to consider. Now my brother Straight has stated that Act IX of 1875 is the Act to which we should refer for the purpose of deciding the question as to the minority or majority of the boy Satya Saran; and my learned brother has also introduced what I consider a very cogent and intelligible distinction as to the age at which the personal desire of the child ceases to have any effect, and before which age his removal from one custody to another would amount to the offence of kidnapping. He has also said that here Satya Saran had passed the age of being dealt with as if he was incapable of making his own choice as to the custody or guardianship under which be chooses to live, because he is admittedly above the age of fourteen.

In passing the Indian Majority Act, IX of 1875, the Legislature had a most delicate matter to consider, because it was, as is obvious [227] not only from the preamble, but from the rest of the enactment, that the Legislature was then desirous to provide as much as it could against interfering with what are called Native personal laws, namely, the Hindu and Muhammadan law of nonage and majority. It is significant that in s. 2 of that enactment express provision is made to the effect that enactment shall not affect the capacity of any person to act in matters of marriage, dower, divorce and adoption; and the Native law was to be left untouched as it was before the passing of the statute. So also is clause (b), which is one upon which I wish to lay some emphasis, and that clause says that nothing contained in the statute is to affect “the religion or the religious rites and usages of any class of Her Majesty's subjects in India.” It is clear from that provision that the age of majority was intended to be non-applicable to matters of religion, and that the provision was made in deference to the religious sentiments and prejudices of Her Majesty's Indian subjects here. But when that clause is to be interpreted, surely it is not to be interpreted entirely in favour of the Hindus and Muhammadans, but also in favour of persons other than Hindus and Muhammadans, such as Buddhists and Christians.

The solitary ground upon which this minor Satya Saran left his parental roof, or rather the house of his elder brother, was the change of religion. For such a change of religion the law has provided no age of majority. The whole law is silent on that point, and if there is any indication it is to be found in the clause which I have just cited, namely, that the Majority Act does not apply to matters relating to religion. In the present case, if after the examination which we made of the boy Satya Saran I had arrived at the view that he was not of the age of discretion as distinguished from the age of legal majority, if I had felt that he could not take care of himself, if I could hold upon the evidence that he had been so far misled or seduced into the way of thought as to religion by reason of any fraud or any other improper method such as would present evidence of his being incapable of understanding what he was doing, I should have with due respect to my learned brother differed from him and passed [228] an order that the boy should be bodily made over to his brother the petitioner and remain under his custody under such terms as the Hindu law of guardianship prescribes. My learned brother has pointed out that such is not the case, and neither the Legislature nor any rule of justice, equity or good conscience which would otherwise be applicable to such matters, requires us to force this grown up boy to be made over to the custody of his brother whose kindness he does not admit, whose religion he abhors, whose way of thought does not suit him, and practically to make this Act an Act more in the nature of a criminal statute directing compulsory custody instead of what the law according to the interpretation of my brother Straight and myself contemplates, namely, jurisdiction only in such cases where discretion in the minor is wanting and the child is of such an age as to be dealt with by persons other than those who have taken him away from proper guardianship.

In the present case I have no doubt that in a country like India, where not only numerous religious customs prevail, but also where the missionary endeavours to convert the Hindu and the Muhammadan population to the religion which Christianity prescribes, are carried upon a considerable scale, questions of this character arise, and it is not a matter of infrequent occurrence that it devolves upon the Court to have to deal with cases and circumstances where the strong hand of the law is asked to be employed to prevent the excess of the one party or the excess of the other in crossing the religious straight line which distinguishes right from wrong in the legal sense which the Courts of justice have been established to enforce. The duty of the Courts under these circumstances is very clear. They have got to see what the law directs; they would not interfere unless they found that the child is, by reason either of want of education or of other influences which have been brought to bear upon him in the ordinary course of life, in a position not to understand what he is doing. Parents, as in this case the mother, may weep, because their son has become a Christian; so in other cases great misery may arise in the shape of grief to the nearest relatives of the boy. But the law provides no remedy for [229] such sorrow, because if it did it would be taking away the principle of human liberty and religious toleration under every civilized form of government.

I have considered it necessary to say what I have said not because I thought that any word that had fallen from my learned brother Straight required any addition, but because it should be clear that neither my brother nor I have decided this case upon any ground other than the strict requirements of the law, and that we have desisted from making any order as to the custody, because with reference to the circumstances of Satya Saran, his age, his intellectual capability of looking after himself and maintaining himself, and with reference to the other circumstances of the case, we are not called upon to make any order under s. 3 of Act IX of 1861. My learned brother has already pointed out how the petitioner-appellant had locus standi to maintain the petition; how the District Judge had jurisdiction to entertain the case; how we had jurisdiction to pass any order we like; and he has also stated his reasons why in this case no interference is necessary. I agree in dismissing the appeal without costs.

Appeal dismissed.