CHANDRAKALA MENON Vs. VIPIN MENON CAPT

JUDGEMENT

(1.) Special leave granted.

(2.) Appellant Chandrakala married respondent Vipin Menon on 16/01/1984. A female child Soumya was born to them on 26/08/1985. In August 1987 husbandnd and wife went to U. S. A. leaving the minor child withher maternal grandparents at Bangalore. In June 1989 Soumya joined her parents in America. In May 1990 Sournya was sent back to Bangalore to live with her maternal grandparents and since then for most of the time she has been living with them. The appellant is doing her research for the degree of Ph. D. in America. Unfortunately differences arose between husband and wife during their stay in America and it became difficult for them to run their married life smoothly. In spite of daughter Soumya being a uniting factor they could not overcome their differences and ultimately a situation came when it became difficult rather impossible for them to live together. It is alleged by the appellant that she and her husband entered into a settlement to get divorce by mutual consent and it was also agreed that Soumya would stay with her maternal grandparents at Bangalore. It is further alleged that the respondent was given a fixed deposit receipt for Rs. 1,50,000. 00 which was in the joint name of the appellant and respondent, as a condition of the settlement. It is not necessary for us to delve into these allegations. The fact remains that the parties filed a joint petition for divorce by mutual consent before the District Judge Palakkad on 3/07/1992. Respondent Vipin menon has filed an application for custody of the child under the Guardian and Wards Act read with Hindu Minority and Guardianship Act before the family court at Bangalore. Another divorce petition filed by him is pending before the Family court, Bombay.

(3.) This appeal has arisen out of peculiar circumstances. While Soumya was residing with her maternal grandparents at Bangalore, Vipin Menon came to see her on 29/04/1992 and in the process took her away to Bombay. Mr V. P. R. Nambiar the maternal grandfather lodged a complaint at the police station alleging that Vipin Menon and his sisters kidnapped Soumya at about 10. 30 a. m. on that day. Although no case was registered by the police against Vipin Menon but finally the Chief Metropolitan Magistrate bangalore took cognizance of the matter and directed Vipin Menon to produce the child on 15/05/1992. The child was not produced on the said date and a telegram was sent by Vipin Menon seeking adjournment on the ground that he was held up at Bombay due to unavoidable reasons. The magistrate refused to grant adjournment and passed an order to the effect that Nambiar was entitled to the custody of the child. The Magistrate directed Vipin Menon to hand over the child to the police so that the custody be restored to Nambiar. He further directed that if Vipin Menon failed to produce the child before the police then the police should register a case against him and also proceed to declare him a proclaimed offender. Vipin menon challenged the order of the Magistrate by way of petition under Section 482, Criminal Procedure Code. The High court quashed the order of the Magistrate by reaching a finding that Vipin Menon being a natural guardian of Soumya could not be charged with the offence of kidnapping. This appeal by Chandrakala and her father is against the order of the High court.