1. On 24-7-1953, one Shriniwas, son of Basantilal Mahajan, approached the District Magistrate, District Indore, complaining that his wife Shantabai who was a minor, about 14 years of age was taken away from his house by her father Badrilal in his absence and without his consent along with ornaments which were with her. He further alleged that Badrilal had detained Shantabai illegally and for unlawful purposes. He prayed for her release from detention and her restoration to him immediately.
Along with the complaint, Shriniwas filed an affidavit in which he has stated that he was married to Shantabai on 19-1-1953. Some time after the marriage Badrilal began to demand money and as it was not paid lodged a complaint against him which was dismissed. Badrilal thereafter approached the District Judge, Indore, for possession of Shantabai Under Section 25, Guardians and Wards Act. That application was also dismissed by the Additional District Judge, Indore, on 15-4-1953,
2. In the affidavit it was further averred that about 5 or 6 days before the complaint was lodged Badrilal went to the complainant's house and during his absence removed Shantabai along with her ornaments. It was further stated in the affidavit that Badrilal had detained Shantabai in his own house at Kalsada in Tehsil Dhar. The petitioner went to Badrilal at Kalsada and asked him to restore his wife but was in reply told that arrangements were being made for her second marriage elsewhere.
3. The learned District Magistrate after going through the complaint was not satisfied that 'prima facie' case for issuing further order was made out. He therefore asked the petitioner to adduce 'prima facie' evidence. On 28-7-1953, Shriniwas examined himself and two more witnesses on his behalf. The learned Magistrate was still not satisfied that Shantabai was unlawfully detained by Badrilal and dismissed the complaint.
4. Shriniwas preferred a revision application to the Sessions Judge, Indore. The learned Judge being of the opinion that the order of the learned District Magistrate was erroneous has referred the ease to this Court Under Section 438, Criminal P. C, with a recommendation that the order be quashed,
5. It appears that the learned District Magistrate felt that to constitute illegal detention it was also necessary for the complainant to prove that the detention of Shantabai was against her will. The learned Magistrate also felt that there was no satisfactory evidence to prove that Shantabai was detained by Badrilal for unlawful purposes.
6. It appears in the statement of the petitioner that on going to Kalsada he met his wife Shantabai and learnt from her that she was ready to go with him. It was her father who was not willing to let her go unless the petitioner paid Rs. 2,500 for the girl and Rs. 700 for court-expenses. P, W. 3 Kanhyalal barber has also deposed that Badrilal threatened to give the girl away to some one else unless this sum was paid by the complainant Shriniwas.
7. This evidence was 'prima facie' sufficient to issue process to the opponent and call upon him to produce the girl before the Court for further inquiry into the matter.
8. Before passing an order Under Section 552, Crimi-[nal P. C, the Magistrate should be satisfied that Ithe detention of the minor girl was both unlawful [and for unlawful purposes. The learned Magis-itrate has in holding that refusal of Badrilal to send Shantabai with her husband could not constitute unlawful detention unless it was further proved to be against her will relied upon the decision of the Calcutta High Court in 'Nathu v. Narilal' AIR 1915 Cal 686 (A).
9. A different view has however been taken iii Tulsidas Janglyadas v. Chetandas Domadas' AIR 1933 Nag 374 (B), That was a case in which Tulsidas had filed a complaint Under Section 552, Criminal P, C, to the District Magistrate, Chhindwada alleging that his wife was unlawfully detained by her father for unlawful purposes and had prayed that she be restored to his own custody. It was alleged that the opponents had threatened to perform the second marriage of his wife. On the complaint being dismissed Tulsidas approached the Sessions Judge and the latter after hearing the parties referred the matter to the High Court Under Section 438, Criminal P. C. Subhedar A. J. C, accepted the reference. He held:
It follows then that if the 'unlawful detention' is for a purpose which is an 'offence' or is legally prohibited or which is a civil . wrong it would constitute an 'unlawful purpose' Under Section 552, Criminal P. C. Tested in this light the detention by a father of her minor married daughter contrary to the wish of her husband with the object to rernary her would clearly constitute 'unlawful detention for an unlawful purpose' because bigamy is declared an offence by Section 494, IPC Again if the girl is being detained by her father contrary to her own wish, as is alleged by the applicant in paras. 11 and 12 of his application such detention would fall within the purview of Section 339, I, P. C, and would equally be detention 'for an unlawful purpose'. Lastly since the unlawful detention of his minor wife by his father-in-law 'prima facie' affords a cause of action to the husband to recover possession of his wife by a civil action, the purpose of such detention would likewise be 'unlawful' within the meaning of Section 552. Criminal P. C.
The view taken by the learned Judge in 'AIR 1933 Nag 374 (B)', appears to me to lay down the correct law. The same view is expressed by Yahya Ali J., in 'Subbammal v. Alamelu Animal' AIR 1948 Mad 225 (C).
10. But it is unnecessary to pursue the matter further as there is another obstacle in the way of the petitioner. According to his own case Shantabai is detained at Kalsada which is stated to be in Dhar District. The District Magistrate, Disk Indore cannot exercise jurisdiction to restore to liberty a person alleged to be detained in the limits outside his jurisdiction. Under the circumstances no useful purpose will be served by accepting the reference and remanding the case for a final determination of the points involved in this case.
11. For this reason the reference is rejected.