1. The rule was issued on the Chief Presidency Magistrate, Calcutta, to show cause why the conviction of the petitioner under Section 40, Bengal Children Act, should not be set aside. Section 40 of the Act lays down that if any person over the age of 16 years, who has the custody, charge or care of any child or young person, assaults, ill-treats, neglects, abandons or exposes such child or young person to be assaulted or ill-treated, neglected, abandoned or exposed in a manner likely to cause such child or young person unnecessary suffering or injury to his health, that person shall be punishable with imprisonment and with fine. The essentials of the offence are (a) that the person convicted should have a child in his custody, charge or care, and (b) that he should ill-treat, or expose that child to ill-treatment. In the present case the facts are that one Saraswati Pal, a child under 16 years of age, was married to a man Sachindra Nath Pal. Both of them shared a house or rooms with the petitioner in this case, who is the mother of Sachindra Pal and the mother-in-law of Saraswati. The evidence further is that the rent of the house was paid by the husband Sachindra Nath Pal. Saraswati committed suicide by setting fire to herself on 24th July 1937 and in consequence of information to the effect that she had done this because of ill-treatment by her mother-in-law and husband, a police enquiry was instituted and the mother-in-law, the present petitioner, was sent up under Section 40, Bengal Children Act. The husband, that is to say the son of the petitioner, was not sent up and was not examined as a witness in the case. The findings of the learned Magistrate were that the deceased girl was under 15 years of age, and that she had been systematically ill-treated, beaten, abused and prevented from going to her parents by the petitioner. The learned Magistrate says that it is unnecessary to consider the question whether the petitioner's conduct towards her daughter-in-law led the latter to commit suicide.
2. There is no finding by the learned Magistrate that the petitioner had the custody, charge or care of the deceased girl, and no evidence was led to establish that point. The evidence actually adduced shows that the deceased girl was living with her husband in the husband's house, and that the mother-in-law also lived there. We are satisfied that the question whether a person has the custody of another within the meaning of Section 40, Bengal Children Act, is purely a question of fact, and that no question of lawful custody or legal custody arises. The difficulty in the present case is that we can find no evidence whatever to establish that the custody, charge, or care of the deceased girl was with her mother-in-law, the petitioner. There is no evidence to that effect, and there is no finding to that effect. Moreover, the husband does not appear in the case at all. Had he been charged and tried jointly with the mother, the difficulty which we have just pointed out could not have arisen, because there could be no question that either the one or the other of them had the custody, charge and care of the son's wife, and in view of the further provisions Section 40 of the Act, the mother or her son must inevitably have been convicted. As the case has been framed however we are constrained to hold that the elements of an offence under Section 40, Bengal Children Act, have not been established, and that therefore the conviction and sentence cannot be maintained. In the result this rule is made absolute, the conviction of the petitioner and the sentence passed on her are set aside, and the petitioner will be acquitted and released from her bail.
3. I agree.