Harington and Pargiter, JJ.:— In this case a Rule was issued calling upon the Chief Presidency Magistrate to show cause why the conviction of the petitioner should not be set aside on the grounds first, that the mother, under whose direction the petitioner was acting, was entitled to the custody of the female minor, Dasadia, until she attained puberty; secondly, that the case came under the latter part of the Exception to section 361 of the Indian Penal Code, and finally, that in any view of the case the sentence is too severe.
2. It has been found as a fact by the Magistrate who tried the case, that the petitioner took the girl away for no immoral or illegal purpose, but that he kidnapped the child at the instance of and at the instigation of her mother who had learnt that the child was unhappy at her mother-in-law's house, and who consequently employed the accused to bring the child back to her. On those findings he has been sentenced to suffer five months' rigorous imprisonment.
3. It is argued that the conviction must be set aside, because on the findings, the offence of kidnapping from lawful guardianship has not been established. It is found by the Magistrate that the girl is of the age of eleven or twelve years. It has been decided in the case of Nur Kadir v. Zuleikha Bibi (1) that under Mohammadan Law, which is the law governing this case, the mother is entitled to the custody of her daughter in preference to the husband until the girl attains the age of puberty. In this case the girl was taken from the guardianship of her mother-in-law, who must be taken, for the purposes of this case, to have been the lawfully authorized agent of the girl's husband. To enable a conviction for kidnapping to be sustained, it has to be shown that the guardianship of the husband was lawful, that is to say, the onus lay upon the prosecution of showing that the girl had attained puberty, because until she had attained that age her mother, and not her husband, was under the Mohammadan Law her lawful guardian.
4. On the judgment it is clear that the prosecution failed to show that the girl had attained the age of puberty: indeed the evidence points to her not having attained that age.
5. The result is that an essential element in the offence charged, namely, that the girl was taken from her lawful guardian, is not established, and, therefore, the conviction must be set aside.
6. We desire to add that in view of the finding of fact in the Magistrate's judgment that the petitioner was acting bona fide on the instructions of the mother, the mother acting in what she believed to be the interest of her daughter—on those findings, we think, that the sentence passed was a great deal too severe, even if in law the conviction could have been supported.
7. The conviction and sentence are set aside, and the petitioner is ordered to be released from his bail. The child must be restored to her mother.
8. Rule made absolute.
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