JUDGMENT
Mukerji, Ag. C.J.
1. This appeal has arisen out of an order passed by the learned District Judge of Aligarh on 17th March 1932 by which he refused permission to Mt. Bhagwati, the mother and guardian of the minor Mt. Maharani, to give away the girl in marriage to one Ram Swarup. The application of Mt. Bhagwati disclosed that Maharani was about 17 years of age, that she herself wanted to marry Ram Swarup, that Ram Swarup was a man of the same brotherhood as the girl and bore a good moral character, that he was 28 years of age, that he was well to do and that although the first wife was alive she had been ailing for some time, and that as she never gave birth to a child, she herself wanted that her husband should take a second wife. We are also told though this is not stated in the application, that the brother of Mt. Maharani is also in favour of this marriage. The learned District Judge disallowed the application on the sole ground that Ram Swarup had a wife living.
2. Having regard to the fact that the Hindu law allows a Hindu to take in marriage more than one wife and having regard to the fact that although the marriage of a man who has got a wife is discouraged by the custom of the country there may be circumstances in which the marriage may be desirable. The learned Judge should have, in our opinion, considered each and every one of the grounds given in the application on its own merits. He should have examined the girl Maharani herself, he should have sent for Ram Swarup and examined him and he should have also examined the wife of Ram Swarup. It Maharani is over 17 years of age she may be treated as a major under the Hindu law and the Majority Act may have no application where a question of marriage, dower, divorce or adoption is concerned. We are not deciding that Maharani can defy the learned Judge’s order or that in respect of Maharani’s marriage Mt. Bhagwati can defy the learned Judge’s order; but we are pointing out a circumstance which might very well be considered by the learned District Judge. We set aside the order of the learned District Judge and send back the case to him and direct him to consider the application from every point of view and then come to a decision as to what would be in the interest of the minor. The learned Judge, after considering all the circumstances and taking such evidence as has been indicated above and such other evidence as he may be disposed to take, shall send up his opinion to us so that we may pass the final order in the case.
3. The District Judge’s considered opinion is in favour of the marriage. We accordingly allow the application of Mt. Bhagwati and permit her to marry her daughter Mt. Maharani to Ram Swarup. No order as to costs.
