1. The petitioners Have teen convicted of kidnapping a girl named Sahya Khatun from lawful guardianship and sentenced under Section 363, Indian Penal Code, to two months' rigorous imprisonment each. The girl in question is a Muhammadan girl whose age according to the case for the prosecution is 8 or 9 and according to defence about two years less.
2. This Rule was granted on the ground that the husband of the girl from whose care she was taken was not her lawful guardian under the Muhammad an Law, nor was he proved to have been lawfully entrusted with the care or custody of the minor so as to make the explanation of Section 361, Indian Penal Code, applicable. We hold that the Rule must be made absolute on this ground. The husband of a Muhammadan girl who has not attained puberty is not the lawful guardian of her person under the Muhammadan Law. The lawful guardian of such a person is ordinarily her mother, and in the present case, since the mother is dead the lawful guardian is the mother's mother who is also the mother of the petitioner Darajuddin. The learned Magistrate in his explanation states that the minor girl was in temporary guardianship of her husband on behalf of his maternal grandmother who was the lawful guardian. But there is no finding in either of the judgments nor do the facts seem to support the view that the maternal grandmother entrusted the girl's husband with the care or custody of the minor.
3. That being so, we make this Rule absolute. We set aside the conviction of and the sentence passed on the petitioners, we acquit them of the charge under Section 363, Indian Penal Code, and direct that their bail-bonds be discharged.