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The Public Prosecutor Vs. Maddila Mutyalu and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in47Ind.Cas.865; (1918)35MLJ157
AppellantThe Public Prosecutor
RespondentMaddila Mutyalu and anr.
Cases Referred and Public Prosecutor v. Rajammal
Excerpt:
- .....may afterwards continue their friendship or may separate.' the evidence however shows that the minor girl continued to live with her parents, that is, the first accused and her father in the same house as before. the house had been rented by the 2nd accused and he paid the rent while his former mistress, who was the sister of the girl concerned in this case was living. the same arrangement was continued. there is evidence to show that the parents of the girl in no way parted with the possession of her to the 2ad accused. there is no suggestion, except that the ceremony of kanyarikam was performed, that she was let to hire for any term.2. the question is whether the performance of this ceremony and the abovementioned facts bring the case within section 372, i.p.c. so far as the mother.....
Judgment:

1. This is an appeal against the acquittal of two persons, the first of whom was charged with an offence under Section 372, I.P.C. and the other under Section 373, I.P.C. The first accused is the mcther of a Hindu girl under 16 years of age and the second accused is a Kornati. The latter kept the elder sister of the girl until she died; and on her death, the evidence is that a ceremony, called kanyarikam was performed between the 2nd accused and the girl with the help of the 1st accused. The kanyarikam ceremony, according to the witnesses, has the effect of an arrangement by which a person has intercourse with a girl who has just attained puberty for three days. P.W. 1 says ' The 2nd accused Krishnamurthi performed the kanyarikam ceremony which means her nuptials. The man that performed the ceremony enjoys the girl's bed for three days successively. They may afterwards continue their friendship or may separate.' The evidence however shows that the minor girl continued to live with her parents, that is, the first accused and her father in the same house as before. The house had been rented by the 2nd accused and he paid the rent while his former mistress, who was the sister of the girl concerned in this case was living. The same arrangement was continued. There is evidence to show that the parents of the girl in no way parted with the possession of her to the 2ad accused. There is no suggestion, except that the ceremony of kanyarikam was performed, that she was let to hire for any term.

2. The question is whether the performance of this ceremony and the abovementioned facts bring the case within Section 372, I.P.C. so far as the mother of the girl is concerned, and within Section 373, I.P.C. so far as the 2nd accused is concerned. We may take,it that the 2nd accused did have intercourse with this girl, D.W. 9. The main question in the case is whether what has taken place amounts to letting to hire or otherwise disposing of the minor within the meaning of Section 372, I.P.C. or 'hiring or otherwise obtaining possession' within the meaning of Section 373, I.P.C. The first section is aimed at the person who disposes of the person of a minar for immoral purposes and the other section is directed against the man who obtains possession of a minor girl for such purposes. We think that the language of the two sections is sufficiently clear to show that there must be making over of possession of the minor girl either by sale or by hire or by similar arrangement in order that the case may come within the mischief of the law. This seems to us to be also the effect of the rulings. One of the earliest cases in this Court is that reported in Dowlath Bee v. Shaik Ali (1870) 5. M.H.C.R. 473. That is a decision of three judges. It is pointed out by Scotland, C.J. in his judgment in that case that, to bring a case within Section 373, I.P.C. there must be evidence to show that complete possession and control of the minor's person was obtained by buying, hiring or otherwise with the intent or knowledge specified in the section. It is further pointed out that 'the provision seems to exclude the supposition that an obtaining of possession in the sense in which that expression, is, no doubt, sometimes used, of merely having sexual connection with a woman, could have been in the contemplation of the framers of the section'. Innes, J. says 'I am of opinion, that 'possession' in the section under which he is indicted means possession with a power of disposal and in this sense, there is no evidence that the prisoner had possession of the girl.' The same view of the law was taken in Queen Empress v. Sukee Raut I.L.R. (1898) Cal. 97. That was a case under Section 372 and Piggot, J. held that Section 373, I.P.C. contemplates a case of letting or hiring or other similar transaction by which the possession of a girl is obtained with the intention of employing her habitually for the purpose of indiscriminate sexual intercourse. Mr. Mayne in his commentary on this section at p. 589, 4th edition states the law to be that 'the words refer to a making over of a minor either in perpetuity or for a term and not merely for the commission of isolated acts of sexual intercourse'. We have on the other hand referred to a number of decisions with respect to the dedication of a minor girl to a temple or a god as. a dasi. We do not think that those cases have a very close bearing on the present question. Those are the class of cases reported in Reg. v. Arunachellam I.L.R. (1876) Mad 164. Ex parte Padmavati (1870) 5 M.H.C.R. 415 Public Prosecutor v. Kannammal (1913) 21 M.L.J. 211 Srinivasa Annaswami I.L.R. (1892) Mad. 323 and Public Prosecutor v. Rajammal (1911) 2 M.W.N. 479 We hold that the facts proved in the case are not sufficient to support convictions under Sections 372 and 373. The order of acquittal will therefore stand.


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