KRISHNA PRASAD PAUL Vs. STATE OF W B

JUDGEMENT

(1.) This revisional application under sections 401/482 of the Code of Criminal Procedure (in short Code), 1973 is directed against order dated 13.7.04 passed by the 1d. Sub-Divisional Judicial Magistrate (SDJM), West Midnapore in G. R. Case No.265/2004 arising out of Narayangarh Police Station Case No. 9 dated 13.2.04 under sections 363/366/366A/368 of the Indian Penal Code (in short IPC) and order dated 19.7.04 passed by the 1d. Sessions Judge, West Midnapore in Criminal Revision No. 123 of 2004 thereby rejecting the petition of informant petitioner for return of the minor victim girl, his own daughter, into his custody.

(2.) Mr. Ganesh Srivastava, 1d. Advocate for the petitioner submitted that the petitioner is the father of the victim girl. The incident of kidnapping of the victim girl took place on 5.2.04 when the victim was approximately 15 years 10 months in age. Her date of birth according to admit card issued by the West Bengal Board of Secondary Education is 1.4.88 and it establishes that on 5.2.04, the date of kidnapping, she was below the age of 16 years and was a minor. The petitioner being the father and natural guardian of the minor victim is entitled to take custody of the victim. After recovery, the victim was produced before the 1d. SDJM but the 1d. SDJM by order dated 13.7.04 did not pass order handing over custody of the victim to this petitioner. The 1d. Magistrate directed that the victim be detained in Vidyasagar Balika Bhawan, a Rescue Home as the victim did not show her inclination to go to custody of her father. The order of the 1d. Magistrate was bad in law as the 1d. Magistrate did not consider that victim was a minor at the time of incident, and being father and natural guardian, he was entitled to take custody of his own daughter.

(3.) Mr. Srivastava further contended that the victim thereafter by engaging a lawyer preferred Criminal Revision No. 123/2004 before the 1d. Sessions Judge, West Midnapore and the 1d. Sessions Judge by order dated 19.7.04 dismissed the revision. But the 1d. Sessions Judge observed that, "The safety and security of a girl of such a young age have to be ensured. She cannot be allowed into the custody of the accused. She has refused to go into the custody of her father. But, unless an adult person having the requisite qualification to act as her guardian comes up and is approved by the victim girl, it would be an abdication of the duty of the Court to release her on her own bond." Mr. Srivastava submitted that this observation of the 1d. Sessions Judge is absolutely illegal as any Tom, Dick and Harry cannot be appointed or approved as guardian to take custody of the victim girl. According to section 6 of the Hindu Minority and Guardianship Act, 1956, father of a Hindu minor is the natural guardian. This Act prescribes who can be appointed guardian of a minor. No outsider except father or mother can become guardian of a mirror and accordingly the latter part of the order of the 1d. Sessions Judge is erroneous. A husband may become a guardian of a minor wife, if there was valid marriage between victim and her alleged husband Alok Dolai. There was no valid marriage between victim and the said person as there was no 'sampradan' of the victim by her father in the alleged marriage. There is nothing to show who acted as guardian in the marriage and made the 'sampradan' of the victim. The alleged marriage was performed violating provisions of the Hindu Marriage Act (hereinafter called the H.M. Act) and the marriage is not valid and voidable. The marriage is not valid, if it was performed without following customs prevalent between the parties. In support of his contention he cited the decisions reported in AIR 1994 SC 135, Surjit Kaur vs. Garja Singh & Ors. and AIR 1996 SC 614, Kanwal Ram & Ors. vs. Himachal Pradesh Administration.