MANAKUTTY Vs. AYYAPPAN

JUDGEMENT

(1.) THE petitioner is the mother of 'sheela' stated to be a minor aged 161/2 years. THE father of Sheela is no more. THE petitioner together with her three daughters and the husband of her eldest daughter was living in her house at Ayyanthole. Sheela the youngest of the three daughters is a student in the Pre-degree Class in the Government College , Trichur. On 14-3-1980 at about 9 P. M the petitioner gave a complaint to the Sub Inspector of Police, trichur West Police Station, that 'sheela' who had gone to sleep at 10 P. M. on 13-3-1980 was found missing in the morning and that on enquiry she came to know that her neighbour Ayyappan induced her to leave her home on a promise to marry her, that she took her to the Registry Office and got an agreement of marriage registered and that the accused and the minor girl were living at Velarkavu. On the basis of the statement, Crime No. 22 of 1980 was registered under S. 366 ipc. , and it is under investigation.

(2.) 'sheela' and accused 'ayyappan' were taken into custody from the house of one Velayudhan on 15-3-198 0. Sheela was produced before the Judicial magistrate, 2nd Class, Trichur-1, on the same day. It appears that Sheela refused to go with her mother. Thereupon, the Magistrate sent her to the superintendent, Rescue Home, Ernakulam, with a direction to detain her in her custody until further orders. This order is challenged in the present proceedings. The order, according to the petitioner, is illegal and without jurisdiction. The petitioner being the lawful guardian, the Court, according to the petitioner, should have entrusted the girl to her custody. The petitioner apprehends that detention in the Rescue Home would spoil the girl's character and would prevent her from continuing her education. The petition is filed under S. 397,401 and 482 of the Code of Criminal Procedure.

(3.) AS already stated a case under S 366 IPC. has been registered against the second respondent and it is under investigation. The age of Sheela would be a matter in issue if the second accused is to be tried for an offence under S. 366 IPC. The mention of the age of Sheela in the present proceedings is based on prima facie materials and is not intended to hamper a decision on the point by the Court which may have to try the case against the accused. With this preface, I may state that the certificate of baptism and the abstract from the register of admission, IJULPS Aranattukara, made available to me for reference, show that Sheela was born on 12-7-1963. She is therefore a minor. There is no scope for dispute in that and the petitioner, in the absence of her father, is her legal guardian and is in the ordinary course entitled to her custody S. 98 of the Code of Criminal Procedure deals with the power of the court to compel restoration, in certain cases, of a female child under the age of eighteen years, upon a complaint made by her parent or guardian. The section reads: "98. Power to compel restoration of abducted females. Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary. " The section may not apply strictly in the instant case as there has been no complaint to any Magistrate mentioned therein and the so called unlawful custody has ceased to exist on the minor being sent over to the rescue Home.