1. This is an application under Section 491 of the Code of Criminal Procedure in which the petitioner seeks to obtain a direction from this Court calling upon the respondent to produce a girl named Kamalammah to be restored to his. lawful custody. It is common ground that Kamalammah is a minor though, there is a dispute as regards her age. The petitioner alleges that the girl was married to him about 11 months before the date of the petition and was staying with him for some days. The respondent is her mother. The petitioner alleges that on 21st April, 1947, the respondent took her daughter to her house promising to send her back on 26th April, 1947, but failed to do so. Further, the respondent went away with the girl to a village near Meenjur and according on the petitioner the respondent is contemplating to leave for Rangoon.
2. The respondent admits that her daughter Kamalammah was duly married to the petitioner. The main allegations in her counter-affidavit are that after her daughter came of age on 7th March, 1947, she took her to her house and her daughter has been remaining with her since that time. She says that the girl is now aged only 13 years and is not in a fit condition for consummation. Apart from her young age she is also in poor health and undergoing medical treatment. She therefore prays in the interests of the minor that immediate custody of her daughter should not be directed to be given to the petitioner.
3. It was contended before me by the learned counsel for the respondent that the remedy of the petitioner is by way of proceedings under the Guardians and Wards Act and an application under Section 491 of the Code of Criminal Procedure is not maintainable when there is another remedy. It is sufficient to refer to the ruling of a Division Bench of this Court in Subbuswami Goundan v. Kamakshi Ammal : AIR1929Mad834 to overrule his contention. It was there held that a husband seeking to recover custody of his minor wife illegally detained by others is entitled to proceed under Section 491 of the Code of Criminal Procedure and the respondent cannot be heard to say that there is another remedy provided for under the law.
4. Undoubtedly after the marriage the petitioner would be the lawful guardian of his minor wife Kamalammah and therefore entitled to her custody. Even if the girl desires to stay with her mother, the respondent, that would not confer a right on the respondent to detain her. The petitioner will -therefore be in the ordinary course entitled to an order in his favour.
5. At the same time as the girl is admittedly a minor this Court should have, as the paramount consideration, her interest and welfare. The respondent's fear that the petitioner requires the custody of her daughter in order that the consummation of the marriage should take place is, I think, not unfounded. But I am glad to find the petitoner making the following statement in his reply affidavit
If this Honourable Court is of opinion that the consummation may be postponed, the minor may be ordered to be kept in the custody of some public institution such as Sevasadanam and not with the respondent for a reasonable period and I am prepared to meet the expenses.
I therefore direct the respondent to surrender her minor daughter to the petitioner forthwith on condition that the petitioner should arrange to have the minor girl Kamalammah kept in the custody of some public institution for the period of one year and incur the necessary expenses for the purpose.
6. In the circumstances of this case and having regard to the attitude of the respondent which I cannot say is wholly unreasonable, I make no order as to costs.