K.K. Mathew, J.
1. The accused in C. C. No.13/1966 of the Sub Divisional Magistrate's Court, Ponkunnam, have filed the revision petition against the order convicting them for offences punishable under Sections 363, 379, 448, 451 and 34 of the I.P.C., and sentencing each of them to undergo four months' simple imprisonment for the offence under Section 363.
2. The 2nd accused is the husband of Pw. 1, A-1 and A-3 are the relatives of the 2nd accused. The 4th accused is a stranger. Pw. 1 and A-2 have a male child, Sagar by name. At the relevant time he was aged 2 1/2 years. They were residing in the house of the 2nd accused Pw. 1 did not, however, like to live with the 2nd accused and so she along with the child went to her father's house and at the time of the occurrence she was residing in her father's house with the child. On 6-12-1965 at about 5 p.m. the 2nd accused along with the other accused came to the residence of Pw. 1 and got into the court-yard of the house. At that time Pw. 1 was sitting on the varandah of the house with the child. The prosecution case is that the 1st accused came and sat by the side of Pw. 1 and then the 2nd accused asked him to do away with Pw. 1 and take the child and come. The 1st accused snatched the child from Pw. 1 and all the accused proceeded to the car which was waiting on the road for taking them. But by the time the neighbours collected in front of the car and the car was not allowed to proceed. So accused 1 and 2 ran away with the child and got into a jeep driven by PW 4 and got down at the 2nd accused's sister's house Pw. 1 complained to the police about the act of the accused. The police after investigation filed the charge.
3. The learned Magistrate came to the conclusion that the accused were guilty of the offences under the sections mentioned above, and convicted them of the offences. An appeal was filed by the accused The appeal was dismissed.
4. The main question for consideration in this case is whether the accused have taken the child from the keeping of the lawful guardian. The courts below have found that the parties are governed by the Sunni School of Mohammedan Law. The mother is entitled to the custody of a male child until the child reaches the age of 7 under the Sunni School of Mohammedan Law, and 2 years under the Shia School. See 'Principles of Mohammedan Law' by D. F. Mulla, 15th Edn., page 297 In Imambandi v. Haji Mutsaddi, 45 Ind App 73= (AIR 1918 PC 11) their Lordships of the Privy Council said:
'It is perfectly clear that under the Mohammedan law the mother is enlitled only to the custody of the person of her minor child up to a rertatn age according to the sex of the child. But she is not the natural guardian; the father alone, or, If he be dead, his executor (under the Sunni law) is the legal guar-dian'.
In 'Muslim Law as Administered in British India' by K.P.Saxena, 2nd Edn., page 385, after quoting the above observation of the Privy Council it is said:
'Thus it is quite evident from this passage that the father is the primary and natural guardian of his minor children, and that the right of custody of the mother and the female relations mentioned above are subject to the supervision and control of the father to which he is entitled by virtue of his natural guardianship of the infant. If that be so, the right of hizanal does not confer upon the mother all the powers of a guardian of the person of a minor under the Guardians and Wards Act. 1890.'
In 'Macnaghlen's Principles 'I Mohammedan Law' 3rd Edn., page 62, it is stated:
'Guardians, are either natural or testa-mentary ..... Of the former description are fathers and paternal grand-fathers and their executors and the executors of such executors.' In 'Outlines of Muhammadan Law' by A. A. Fyzee, 3rd Edn. Page 189, it is observed:
'The custody of an infant child belongs tothe mother: this right is known as hldens(loosely spelt in India Hizanat) The motheris entitled in Hanafl law to the custody of hermale child till the age of 7 years, and ofher female child till puberty ... Themother is, of all persons, the best entitled tothe custody of her infant child during marriage and after separation from her husband,unless she be an apostate, or wicked, or unworthy to be trusted. Although the motherhas the custody of a child of tender years,this does not imply that the father has norights whatever.'
Then he quotes the observation of the Privy Council quoted supra, and says:
'Thus, where the father and mother are living together, their child must stay with them and the husband cannot take the child away with him; nor can the mother lake It away without the permission of the father, even during the period when she is entitled to the custody of the child. Where the child is in the custody of one of its parents, the other is not to he prevented from seeing and visiting it. The father's supervision over the child continues in spite of the child being under the care of female relations, for it is the father who has to maintain the child.'
In Dhuma Manjhi v. Emperor, AIR 1943 Pat 109 it was observed:
'When the husband of a minor girl seeks the assistance of the civil court in obtaining the custody of his wife, the Civil Court may, for good and sufficient reason decline to give him the custody of her and permit her parents to retain her in their custody until she reaches malurity. But it by no means follows that if such a husband seizes an opportunity that presents itself to him of taking his wife into his own custody; he commits a criminal offence. A husband becomes the lawful guardian of his wife as soon as the marriage ceremony has been performed, and it is immaterial whether or not his wife has then attained puberty. The father ceases to he the lawful guardian of his daughter and therefore if her husband comes across her and insists on her going with him he does not commit the offence of kidnapping.'
In Korban v. King Emperor, (1904) ILR 32 Cal 444 it h held:--
'Under the Mahomedan law the mother is entitled to the custody of her daughter, in preference to the husband, until the girl attains the age of puberty.
The removal of an immature Mahomedan girl of eleven or twelve from the house of her mother-in law in whose charge her husband had left her, by a third person acting at the instance, and under the instigation, of her mother is not a taking from 'lawful guardianship, and does not amount to 'kidnapping.''
This ruling may show that until a girl affairs the age of puberty her mother instead of her husband is entitled to her custody and taking the girl from the custody of the husband by the mother would not amount to kidnapping Sec. 361 of the I.P.C is as follows:--
'Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keening of the lawful guardian of such minor or person of unsound mind. without the consent of such guardian, is said to kidnap such minor or person, from lawful guardianship.
Explanation :-- The words 'lawful guardian' in this section Include any person lawfully entrusted with the care or custody of such minor or other person.
Exception :-- This section does not extend to the act of any person who in good faith believes himself to be the father of an Illegitimate child, or who in good faith believes himself to he entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
It may be noted that the section speaks of lawful guardianship' and taking of a minor out of the keeping of the lawful guardian. The mother has only the right to the custody of the minor until a particular age. That will not make the father criminally liable if he takes the child from the custody of the mother, the reason being that when the father takes the child from the custody of the mother, he is only taking the child to the custody of the lawful guardian. The father, according to the Privy Council, is the natural and legal guardian of the minor. A legal guardian is certainly a lawful guardian, and if he takes a minor child from the custody of the mother who is certainly not the legal or natural guardian, though entitled to the custody of the child until it reaches a particular age, can he be said to commit the offenceof kidnapping? I think not When a father takes his minor child from the custody of the mother he is not taking the child out of the keeping of the lawful guardian. The right of the mother to the custody of the minor child is something different from the right of the lawful guardian The right of the mother to the custody of the child is not an absolute right The right is subject to the superior right of lawful guardian. I do not think that in taking the minor child from the custody of P.W. 1 any offence has been committed by the accused. In this view the conviction of the accused of the offences punishable under Sections 448 and 451 cannot also stand as the dominant intent of the accused in entering the house was not to commit an offence or to intimidate insult or annoy, hut the bona fide exercise of a right.
5. I think, the petition has to be allowed, and I do so The accused are set at liberty.