Sen Gupta, J.C.
1. This Rule is directed against an order of the Sessions Judge of Tripura dismissing an appeal against the conviction of the petitioners Oyali Mia and Sona Mia, father and son, under Section 383, I.P.C. by the Saddar Magistrate of Agartala, sentencing each of them to rigorous imprisonment for six months.
2. The case for the prosecution in brief was that Jahora, a girl of seven years was given in marriage to the Complainant's son and was living in the Complainant's house when she was taken in Naiyar (a causal visit) to her mother's house & from there to the house of an uncle of hers. While returning from there with the complainant, she was forcibly taken away by the Petitioners for giving her in marriage with Sona Mia.
3. The defence was that Jahora was actually married to Sona Mia, that the complainant was not the lawful guardian of Jahora and that the story of kidnapping was false.
4. Both the learned Magistrate and the learned Sessions Judge found as a matter of fact that Jahora was married to the Complainant's son and that the Petitioners had forcibly taken her away from the custody of the Complainant while she was accompanying him to his house. It was further found by the Courts that the defence story of Jahora's marriage with Sona Mia was not true and that the mother was, after the occurrence, won over to support the defence version of the case.
5. The legality of the conviction was challenged before this Court on two grounds viz, that the complainant was not the lawful guardian of the minor Jahora at the alleged occurrence and that the alleged removal of Jahora from the custody of the Complainant was at the instance of her mother. It was argued that the conviction was bad in law on both these accounts.
6. With reference to the first ground reliance was placed on the rulings in the cases of - Korban v. King Emperor 32 Cal 444, - Darajuddin Akanda v. Emperor AIR 1923 Cal 672 and - Banamali Tripathi v. Emperor AIR 1943 Pat 212. It has been held in all these cases that the mother of a minor Muslim girl continues to be her guardian even after her marriage. This general proposition is not challenged. The facts of the present case however appear to be peculiar. After the marriage of Jahora she went to live in her husband's house and the natural guardianship appears to have been transferred by the mother to the father of the girl's husband, the Complainant. It does not appear that anybody ever challenged th6 guardianship of the Complainant. Jahora's mother does not appear to have repudiated this. The fact that Jahora came to her mother and then to her uncle in Naiyar, also shows that she was in the ordinary course to go back to the Complainant's house. There is no evidence that either the mother or the uncle disputed this. When the Complainant was bringing Jahora to his house during the continuance of this position he must be deemed to be the rightful custodian and lawful guardian of the minor Jahora, within the meaning of Section 361 I.P.C., the mother having nothing to do with her protection at the time.
7. If the removal from the custody of the Complainant could be proved to have been effected at the instance of or under the instigation of the mother of the minor, such taking would be lawful as in that case the guardianship of the Complainant must be deemed to have been terminated by the action of the mother, the normal legal guardian. This view has also its support from the opinion expressed in the decisions in Korban's case 32 Cal 444 and Banamali Tripathi's case AIR 1943 Pat 212 referred to above. None of the Courts below however found that the taking of Jahora was at the instance of or at the instigation of her mother. On the other hand the clear finding of both the Courts is that Jahora's mother was won over after the occurrence. But subsequent ratification after the offence was completed, cannot take the case out of the purview of Section 363, I.P.C.
8-9. His honour after examining the evidence and dismissing the second contention of the petitioner as an afterthought and untrue proceeded. Besides the points referred to above it was argued that the trial Court failed to comply with the provision of Section 342, Cr.P.C. in recording the statement of the petitioners and this was fatal to the prosecution. Reference was made in this connection to the Privy Council Ruling in the case of - Nazir Ahmed v. King Emperor reported in AIR 1936 P.C. 253 (2), where it was observed that 'where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all'. The comment has reference to an irregular record of confession on which a conviction was based. In the present case however the irregularity is only of a nominal nature and does not appear to have prejudiced the petitioners in any way. The irregularity complained of is thus curable under Section 533 Cr.P.C.
From what has been stated above and on a consideration of the other facts and circumstances on record this Court is of the opinion that the Rule must be discharged.