KHAMARULLA KHAN Vs. MUJIBA K KHAN

JUDGEMENT

(1.) This petition is directed against the order darted 23-2-1979 passed by the Metropolitan Magistrate (IV Court) Bangalore City in C.C. No. 474 of 1979 ordering that the custody of the child - Maqsood Ali Khan - be given to the respondent (complainant). Respondent, who is the complainant before the trial Court, is incidentally the wife of the first petitioner. The complainant filed a complaint before the trial Court under S. 200 of the Code of Criminal Procedure against her husband -A1 - (1st petitioner herein), her mother-in-law and two sisters-in- law, A-2 to A-4 respectively (respondents 2 to 4 herein) alleging that they have committed offences punishable under Ss. 339, 340, 342, 344, 346 and 361 I.P.C. In short the averments are that she married A-1 on 18-7-1976 and thereafter she lived with A-1 and the other accused at Bangalore. Out of the said wedlock a male child by name Maqsood Ali Khan was born to her through Al on 6-11-1977. After sometime she along with her husband (Al) took up a separate residence at No. 780, Indiranagar First Stage, Bangalore and lived there happily. She has alleged that her husband has always been prone to violence and was ill-treating her from within a short time after the marriage, but she bore his violence patiently hoping that in course of time he would mature into a reasonably decent husband and would treat her with compassion, love and respect.

(2.) When her husband was in financial difficulty he used to ill-treat her and demand her to go to her parents' house and bring such sums that would be sufficient to get over his financial stringency. The complainant hoping that her husband would mend his ways, succumbed to the pressures of her husband and made her parents part with huge sums of money thinking that this could appease him and that he would show a certain amount of humanity, love and respect towards her. But it reached a stage that the parents of the complainant were unable to meet the periodical demands of A1. When the things stood thus, on 8-2-1979 the child took ill, as he was suffering from diarrhoea and her husband at the instance of A2 to A4 and with the object of causing her mental torture and harassment ostensibly took away the child with the excuse that he would take the child to the Doctor, but in. fact Al took the child to the house of A2 to A4 and in spite of her repeated request Al did not bring back the child or permitted her to visit the child, who was in the house of A2 to A4. It is her further allegation that on 15-2-1979, Al in a fit of temper, assaulted her and drove her away from the matrimonial house threatening her never to return and that if she attempted to return or seek to visit the house of A-2 to A-4 with the object of seeing her child, that he (A1) would kill her as also her father. As it was unbearable for her to live any longer with her husband, because of physical assault, mental torture and ill-treatment, she sought refuge and shelter with her parents and though she was trying to see her child, she was not permitted to do so by the accused. Again on 17-2-1979 she sought the assistance of Tilak Nagar Police to visit her child and to take him back with her to attend to his illness. She accompanied by a police officer in civilian clothes approached the residence of A2 to A4 where A1 is also residing and tried tu gain entrance into the said house, but she was not permitted to enter the house and in fact Al to A4 with the common object, started attacking not only her but her father also, who was present then and that fact was noticed by the police officer who was present there. When she demanded the return of her child all the accused told her that the child was not available with them and that they would never return the child to her. She has also alleged that the child may be suffering, being away from her. On the basis of the aforesaid allegation she has filed the above complaint on 22-2-1979 and prayed that the Court may be pleased, in the interest of justice, to order a search for the child at the house of the accused or at such other place where the child may be confined illegally under S. 100 Cr.P.C. and thereafter the child be restored to her, as being the mother, who is solely entitled to the custody of the child. She has also prayed that after restoring the child to her as aforesaid by search, the accused be suitably dealt with for their illegal acts and punish them according to law.

(3.) On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant, which is in general and are in conformity with the allegations made in the complaint.