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Colonial Cases

Ex parte Bonnerjee, in re Ghose [1833]

habeas corpus - religion, conversion to Christianity - rights of Muslim father during infancy

Supreme Court of Calcutta

Franks and Ryan JJ, 16 July 1833

Source: The Morning Chronicle (London, England), 4 January 1834, issue 20081 [1]

SUPREME COURT, CALCUTTA - JULY 16.

Native Converts.

On the 12th a writ of habeas corpus was issued by the acting Chief Justice against Kistnomohum Bonnerjee, otherwise called Kistno Bundo, calling upon him to produce the body of Brijonaut Ghose, the son of Rammohun Ghose, of Bunhoogly, in the Twenty-four Pergunnahs, Izardar, together with the day and cause of taking and detaining him.

The writ was issued on two affidavits. The first, by Rammohun Ghose,   set forth that his son, Brijonaut Ghose, an infant of the age of fourteen years, or thereabouts, about eight months ago commenced attending as a day scholar at the Missionary School at Mirzapore, of which Kistnomohun Bonnerjee, a converted Hindoo, was one of the teachers; and that, having been informed that Kistnomohun Bonnerjee was endeavouring to convert the boy, and to induce him to abjure the Hindoo religion, he removed him from the school in March last, on which day (according to the information conveyed to him, and to the best of his belief0, during his absence the boy was forcibly taken away by the said Kistnomohun Bonnerjee.

The writ was served on Kistnomohun Bonnerjee on the 13th, and he attended the Court, accompanied by the boy, to make his return. The return set forth that Brijonaut Ghose was admitted a day scholar at the English school, at Mirzapore, on the 2d of January last, of which school he (Kistnomohun) was head teacher; that on the 27th of May last, Brijonaut Ghose, having been absent from school for some days, went to his (Kistnomohun's) house, in Guyreybahoo's -lane, accompanied by one Sreenauth Newgy, a relative of his, and told him that he had been detained against his will at the house of his father, where he had been kept under close custody for about fifteen days, during which time his family had used every endeavour to prevent his becoming a Christian, and used threats towards him, which had put him in bodily fear; that he (Kistnomohun) then advised him to return to his father's house, and behave to his father and other relatives with gentleness and kindness, and that he (Brijonaut Ghose) went away accordingly; further, that Sreenauth Newgy went to him (Kistnomohun) two or three days afterwards, and informed him that Brijonaut Ghose wished to speak to one Doorgadose Roy, a scholar at the same school; that Doorgadose went as desired on the 1st of June last, and on his return informed him (Kistnomohun) that Brijonaut Ghose had told him that he found it impossible to live in his father's house, and wished Kistnomohun Bonnerjee to wait in a conveyance at a distance from the said house, on the Barrackpore-road; that he (Kistnomohun) went on the 2d of June in a palanquin-carriage to the place directed, where, in a very short time, he was joined by Brijonaut Ghose, who freely and voluntarily, and without any force, entered the carriage, which was then driven to the house of the Rev. Mr. Dealtry, where they alighted; and that they remained in the society of Mr. Dealtry till ten o'clock, when they got into a carriage provided by Mr. Dealtry, and, at the request of Brijonaut Ghose, drove to the house of the Rev. Mr. Sandys, at Mirzapore, where he (Brijonaut) slept that night, and every succeeding night up to the time of the return, only attending the school during school hours, and for the purposes of tuition; further, that Brijonaut was not at the time of serving the writ, and had not been at any previous time, detained in his (Kistnomohun's) custody, nor in any manner under his controul, further than as a pupil during school hours, and for the purpose of tuition, which attendance was wholly voluntary on his part; and that he, the said Brijonaut Ghose, had accompanied him voluntarily, and of his own free-will, to the Supreme Court.

Mr. Longueville Clarke, on behalf of the boy's father, said he had no objection to the return, and had merely to ask their Lordships, since the boy had been brought into Court, to order him to be delivered up to his father. The return did not negative what had been sworn to in the affidavit, that the boy was under fourteen years of age, and he submitted that the father had a right to demand the delivery of his son under the 21st Geo. III. c. 70, which provided for the preservation of the authorities of fathers over their families according to Gentoo or Mahomedan laws.

The Advocate-General, on the part of Kistnomohun and the boy, said that it had not yet been proved that the latter was under age; the affidavit merely stated that he was fourteen or thereabouts, which would admit of a very wide range.

The boy himself said, in very good English, that he thought he was sixteen years of age, because his mother had told him two years ago, when he was sick, that he was then fourteen, and that that was a very critical period in the life of a child.

Mr. Clarke said that he had been sworn to be an infant in the affidavit, which was of itself sufficient; but if any doubt should remain, his father was in Court ready to swear to the fact again. Besides this, his horoscope was in Court, which would prove his age to a certainty. This was a question of no small importance, inasmuch as the rites and ceremonies of the Hindoo religion would be materially affected by the decision their Lordships might come to.

The Advocate General would not contend that the Court had not the power of protecting the authority of fathers of families, but he had never heard that the fathers of families had more power over their male children in this country than in any other, though he admitted that they had over their female children. But this question was not now before the Court, for to him it appeared that the habeas corpus being issued to bring up the boy, the question was not to whom he should be delivered, but whether the Court would deliver him to any one . When a party was brought up, and that part was capable of making an election, the natural question that suggested itself to him was, with whom he was willing to go? What had the best writers said on the subject of writs of habeas corpus? They were described as "high prerogative writs, by which the King had a right to demand why any of his subjects were imprisoned." Let them look at the return - to whom was it directed? Why it was directed to Kistnomohun Bonnerjee who had showed that the boy had acted voluntarily and of his own accord. The boy had come willingly into Court, and had not been brought by the person to whom the writ had been directed; he ought therefore to be discharged at once, or in fact, the Court ought not to be cognizant of his presence, as it had been proved by the return, which return the Court was bound to consider as true, that he was not in the custody of the person to whom the writ had been directed; to whom then could the order of the Court be made, the person to whom the writ was directed swearing that the person required was not under his controul? He would not appeal to their feelings by dwelling on the boy's reluctance to return to his family, but would confine himself to the mere point of law that a return had been made to the writ, by which it was shown that the boy was not under the controul of the party required to produce him. The return was to be taken as true. When a party was brought up, the usual course was to ask him with whom he would go? but in the present case even that was unnecessary; he came voluntarily into court, and without any question before them, would the Court take upon itself to decide that he should go back again with his father, or what were the rights of fathers over their families? The Advocate General concluded by asking the Court to allow the boy to speak, as he wished to be heard.

Sir John Franks said there could be no objection, but that it was unnecessary, as the Court must be bound by the return. Taking the return as true, the first question that presented itself was the age of the boy; and by what had appeared before the Court he was bound to say that, in the common parlance of the world, he was about fourteen - that is, something under or something more. Such being his opinion, he took it to be the duty of the Court, as clearly laid down in the 21st Geo. III. c. 70, to protect the authority of fathers of families over their children. This was a case in which the boy was clearly under age, and in his opinion he ought to be given over to the custody of his father. He considered him constructively to have been brought up by the person by whom the return was made, and therefore decided that he ought to be delivered over to his father.

Sir E. Ryan said he agreed with Sir John franks in thinking that the boy ought to be delivered up to his father. The case was one of great importance - more, indeed, than he had at first thought. Sir Edward then went over the particulars detailed in the return, from which he inferred that there had been something like contrivance used in getting the boy away, and it became a question of some importance, what course was to be taken when such steps were used. The person by whom the return was made denied that the boy was in his possession, but yet produced him. The Learned Judge cited cases to prove that the Court had a discretion to dispose of the persons of infants by restoring them to their parents, or permitting them to go where they pleased, without reference to the nature of the return of the manner in which they were produced. Under all the circumstances of the case, he could not help thinking that the child had been lured from his parents for the purpose of conversion to the Christian faith, which was against the religious usages and customs of the Hindoos. Fathers were the legal guardians of their children, and he conceived the Court bound to support their parental authority; he, therefore, thought they ought to use their discretion, and order the return of the boy to his father.

The boy here personally addressed the Court, and expressed himself unwilling to go with his father, alleging, as his ground of refusal, that he had before been persecuted and kept in confinement for adopting the Christian faith, and therefore breaking his caste.

Sir E. Ryan said he could obtain redress in that Court if he experienced any improper treatment.

The Advocate-General said their residence was out of the jurisdiction; but the Judge replied, that redress might in that case be obtained from the Local Courts.

The poor boy, in the most pathetic manner, again begged that he might not be delivered up to his father, and stated that, when he had first contemplated embracing Christianity, he had been taken by his father into the country, kept in confinement, and subjected to a series of ill-usage, his father and relations threatening to poison him rather than suffer him to become a Christian.

The Court refused to hear any statement made in an unofficial manner, and reiterated its order for the boy to be delivered to his father.

The poor fellow was then seized hold of by his father, who could not get him out of Court without considerable exertion. The little fellow cried most bitterly, repeated his appeals to the Judges, seized hold of the barristers' table, and was dragged inch by inch out of the Court, amidst the sympathy of some and the triumph of others of the numerous spectators assembled to witness so novel a spectacle.

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This curious case has given rise to much discussion in the papers. The John Bull contends that the decision of the Court will have the effect of deterring many a native lad from seeking after that instruction which is indispensible in order to place the future generations in advance of the present intolerant race of Hindoos. A Correspondent in the Bengal Chronicle, too, condemns the decision, and the reasons for it; alleging that the inclinations of the lad should have been consulted by Judges invested with discretion. He remarks that "the object of the writ of habeas corpus is merely to deliver the subject from restraint; that object was gained when the boy was produced in Court. Had he been asked, he would have sworn, if necessary, that he was and had been a free agent; and liberty was infringed, not promoted, by that noble statute, when it was made in instrument to cabin, crib, and confine an emancipated mind within the narrow torture-boot of paternal prejudice."

On the other hand, the decision is applauded by the Indian Gazette and the Hurkaru, which condemns the forward zeal of proselytism. The former journal observes - "The zeal of proselytism will not only defeat or postpone its end, but the great design of instilling knowledge into intelligent native youth - against whose instruction, but for this injudicious mixture of religious influence, there would never be the smallest parental hostility - may be entirely frustrated. For what advantage is this danger incurred? It is to indoctrinate the minds of Hindoo boys, who, on any subject of worldly knowledge or any matter of temporal research or examination, would not be pronounced, either from their age or acquirements, very competent judges. Besides, let it be remembered that persuasions lightly taken, without means or abilities to deal with evidence, are susceptible of being as lightly effaced, and that a great interest is in this instance at stake [next four lines illegible] classes, whose examples will have the greatest influence, are to be frightened form the seminaries of education by the danger of proselytism, which they now regard with the greatest apprehension, and find to be so imminent." - Asiatic Journal.

Note

[1]  See also Caledonian Mercury (Edinburgh, Scotland), 11 January, 1834, issue 17552, which contains a similar case report, but not the comments from other newspapers.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School