ISMAIL ABOOBAKER PUTHUPARAMBIL THODUPUZHA Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused in C. C. No. 13/1966 of the Sub Divisional Magistrate's Court, Ponkunnam, have filed the revision petition against the orders convicting them of offences punishable under S.363, 448 and 451 read with S.34 of the IPC., and sentencing each of them to undergo four months' simple imprisonment for offence under S.363.

(2.) The 2nd accused is the husband of Pw. 1. A-l and A-3 are the relatives of the 2nd accused. The 4th accused is a stranger. Pw-1 and A-2 have a male child, Sagar by name. At the relevant time he was aged 2 1/2 years. They were residing in the house of the 2nd accused. Pw. 1 did not, however, like to live with the 2nd accused and so she along with the child went to her father's house; and at the time of the occurrence she was residing in her father's house with the child. On 6 12 1965 at about 5 p.m. the 2nd accused along with the other accused came to the residence of Pw. 1 and got into the courtyard of the house. At that time Pw. 1 was sitting on the verandah of the house with the child. The prosecution case is that the 1st accused came and sat by the side of Pw. 1 and then the 2nd accused asked him to do away with Pw. 1 and take the child and come. The 1st accused snatched the child from Pw. 1 and all the accused proceeded to the car which was waiting on the road for taking them. But by the time the neighbours collected in front of the car and the car was not allowed to proceed. So accused 1 and 2 ran away with the child and got into a jeep driven by Pw. 4 and got down at the 2nd accused's sister's house. Pw. 1 complained to the police about the act of the accused. The police after investigation filed the charge.

(3.) The main question for consideration in this case is whether the accused have taken the child from the keeping of the lawful guardian. The courts below have found that the parties are governed by the Sunni School of Mohammedan law. The mother is entitled to the custody of a male child until the child reaches the age of 7 under the Sunni school of Mohammedan law, and 2 years of age under the Shia school. See 'Principles of Mohammedan Law' by D. F. Mulla, 15th Edn., page 297. In Imambandi v. Mutsadai 45 I. A. 73 their Lordships of the Privy Council said: