1. The respondent put in an application in the Court of the Chief Presidency Magistrate purporting to be under Section 552 of the Code of Criminal Procedure alleging that he was lawfully married to the third petitioner here on the 22nd September, 1940, that the nuptials took place, and that on the following day, the 23rd day of September, 1940, the parents, the first and second petitioners Here, took away the third petitioner against her wishes to her home and detained her there with the intention of getting her married to somebody else.
2. The Magistrate issued a notice under Section 552 of the Code of Criminal Procedure to produce the girl. On the date to which the case had been adjourned an advocate appeared on behalf of the petitioners and represented that it would be a great hardship to bring the girl all the way from Tellicherry in North Malabar to Madras to answer to a petition that could not in any case be granted, because the girl was more than 16 years of age and no offence had been committed within the jurisdiction of the Magistrate. The Magistrate overruled that objection and ordered a non-bailable warrant to issue. Upon the representation of the advocate appearing for the petitioners here that it was illegal to have the girl arrested and that, in any case, it would be a very harsh method of procuring : her attendance in Court, the order was cancelled after the advocate gave an undertaking that he would produce the girl on the adjourned date. In the meanwhile, he got a stay order from this Court. The question that arises is whether the order of the learned Chief Presidency Magistrate calls for any interference from this Court.
3. There can be no doubt that it would be very hard on the petitioners if without strong ground they were required to come from Tellicherry in North Malabar to Madras for the purpose of this petition unless the Magistrate was satisfied that their attendance was necessary. The petition was a very short one and the only statements on which the learned Magistrate could act were that there was a legal marriage on the 22nd September, 1940, and that on the 23rd September, 1940, the girl was taken away. When he issued his second order he had heard the story of the other side, which was that they had come to Madras to answer an advertisement in which the respondent was seeking for a bride and that finding that the respondent would not make a suitable husband they took the girl back again. With these two stories in front of him, I think the learned Chief Presidency Magistrate should have required from the respondent some further evidence that a lawful marriage had taken place; for unless he was satisfied that the marriage had taken place, the respondent clearly had no right to ask the Magistrate to have the girl brought back to Madras.
4. The learned Crown Prosecutor has pointed out that under Section 4 (Clause 3) of the Madras Marumakathayam Act, notice of every marriage shall be given to some person appointed under the Act to register such marriages. If the learned Magistrate had been satisfied by a copy of such registration or otherwise that a marriage had really taken place, then the petitioners might have no cause for complaint in being required to come from Tellicherry in North Malabar to Madras to answer the charge; but they ought not to be required to do so unless the Magistrate had something more substantial before him than the respondent's petition as evidence that a marriage had taken place.
5. Moreover, one would have expected that together with an application under Section 552 of the Code of Criminal Procedure, there would have been a complaint under the Indian Penal Code of the offence of abduction.
6. The learned advocate for the petitioners has further pointed out that the offence, if any, that was committed in Madras was abduction, and there can be no abduction unless force or deceit is used. There is nothing in the petition which was sufficient to satisfy the learned Magistrate that force or deceit had been used in taking away the girl from Madras. Moreover, an order under Section 552 of the Code of Criminal Procedure can only be passed if the girl is under sixteen years of age, which is not alleged in the petition.
7. It will follow from what has been said above that the order of the learned Chief Presidency Magistrate has to be set aside. One course that would be open to this Court would be to direct the Magistrate to enquire further into the matter and satisfy himself that an order under Section 552 of the Code of Criminal Procedure should issue; but as the dispute between the respondent and the petitioners seems to be one that could be decided much more satisfactorily in a Civil Court than by a summary order of a Magistrate, I do not think it in the interests of justice that the present proceedings should be continued.
8. The petition is therefore allowed and the proceedings before the Chief Presidency Magistrate quashed. The respondent may pursue his remedy in a Civil Court if so advised.