Full Judgment
Shah, J.
1. The applicant before us has been convicted under Section 372 of the Indian' Penal Code for having disposed of her daughter Subbi under the age of 16 with intent that she shall be employed or used for the purpose of prostitution. The trial Court found that the ceremony described in the record as Gejjee ceremony was in fact performed in respect of the girl in question, and that the performance of that ceremony amounted to a disposal of the girl within the meaning of the section. The accused was accordingly convicted. In appeal the learned Sessions Judge has found that 'a girl, who, upon the strength of the Gejjee ceremony alone, should begin to practise harlotry, would incur reprobation among her fellows, and would be put out of communion with the caste. Dedication to the life of a courtesan is not made by Gejjee Shastra but by Falshobhan, which is the wedding of the votaress and her God.' It is further found by him that the girl in question has not become a prostitute and that it is not admitted that she is intended to become a prostitute. He apparently believed the evidence adduced to show that some of the girls who had gone through this ceremony, were married women. He felt however pressed with what he believed to be the effect of certain decided cases and confirmed the conviction and sentence.
2. In the application before us it has been argued on behalf of the applicant that on the findings there if no dedication of the girl which would amount to a disposal within the meaning of Section b72 of the Indian renal Code. It seems to me on the findings of the appellate Court that this contention in well-founded. It may be that the performance of the Gejjee ceremony may ultimately facilitate the fall of this girl. But it is not a necessary consequence of the ceremony according to the findings that she should be treated as a girl dedicated to a temple as a dancing girl. The decisions in Queen-Empress v. Tippa I. L. R (1892) 16 Bom. 737 and Reg. v. Jaili Bhavin (1869) 6 B.H.C.R. must be taken to have been based upon the proved or admitted facts in those cases. In both these cases there was undoubtedly the fact of the dedication of the girl to the temple. In the present case on the findings it cannot be said that the girl is dedicated to the temple. On the contrary on the findings of the appellate Court it would appear that the ceremony described as the Falshobhan ceremony would mark the stage when the girl is dedicated to the temple. The distinction which the Sessions Judge has drawn between the two stages marked by the performance of the Gejjee ceremony and the Falshobhan ceremony is apparently based on the evidence in the case and must be accepted for the purpose of this application. In the case of Srinivasa v. Annasami I.L.R (1891) Mad. 41 to which a reference has been made the facts were different. This case like the other two cases must be taken to have been decided with reference to the facts of the case. In the present case it seems to me that the position of the girl for all practical purposes with reference to her surroundings continued to be much the same after the ceremony as it was before. She continued to live with her mother and it is not shown to be a necessary consequence of the performance of the ceremony that she should either leave her mother or that she cannot marry or that she must lead the life of a prostitute. Under those circumstances the mere fact of the performance of the ceremony cannot be treated as amounting to a disposal within the meaning of Section 372 of the girl by her mother. It must be distinctly understood that I have reached this conclusion on the facts found by the lower appellate Court in this case.
3. I would make the rule absolute, set aside the conviction and sentence and direct the fine, if paid, to be refunded.
4. The bail bonds to be cancelled.
Hayward, J.
5. I concur. The ceremony known as Gejjee Shastra that was performed has been held to have been merely preliminary and not the ceremony of dedication known as Falshobhan which has been held the final ceremony. The case differs therefore from the complete dedication to a temple which was proved in the cases of Reg. v. Jaili Bhavin (1860) 6 B.H.C.R. 60 and Queen Emprexs v. Tippa I.L.R (1892) Bom. 737. It seems to me therefore that there has been no disposal of the girl on the facts found by the learned Sessions Judge within the meaning of Section 372 of the Indian Penal Code.