BORTHWICK Vs. BORTHWICK

JUDGEMENT

(1.) The petitioner, Mrs. Anne Elizabeth Borthwick, was arrested on the 18th October, 1913, in execution of a warrant issued by the Subdivisional Magistrate of Dinapore, the charge against her being that she had kidnapped her child from the lawful guardianship of the father, Mr. Herbert Charles Borthwick. It appears that the parties were married in 1905. Bight years later Mr. Borthwick filed a petition for divorce in the Court of the District Judge, Patna, on the ground of adultery and obtained a decree nisi on the 18th August, 1913. In that decree it was directed that Mrs. Borthwick do deliver up to Mr. Borthwick the son born of the marriage. Subsequently to the decree Mr. Borthwick, without the assistance of the Court, obtained custody of the boy, On the 10th October, 1913, the present petitioner Mrs. Borthwick, removed the child from Mr. Borthwick s house. Mr. Borthwick informed the police, and after enquiry the present case was instituted upon a police report charging the petitioner, Mrs. Borthwick, under Section 363 of the Indian Penal Code, with the offence of kidnapping the child from the lawful guardianship of Mr. Borthwick.

(2.) The decree nisi for divorce, dated the 18th August, 1918, was sent by the District Judge to the High Court for confirmation. The decree has not yet been unformed by the High Court, and in fact the minimum prescribed by Section 17 of the Indian Divorce Act has not yet expired. The parties are, therefore, still man and wife Warter v. Warter (1890) L.R. 15 P.D. 152.

(3.) The case against the petitioner, however, is that her act of removing the child from Mr. Borthwick s custody in October amounted to an offence by reason of the order of the District Judge in August to the effect that Mr. Borthwick should have the custody of the child. The question for decision is whether the order by the District Judge was of immediate effect or whether it was merely an order nisi subject to confirmation by the High Court and is, therefore, not yet in force. The material portion of the District Judge s Judgement is as follows. "The following decree is accordingly made (a) that the marriage be dissolved, (b) that the respondent Anne Borthwick do deliver up to the petitioner the son born of the marriage... (c) that the co-respondent do pay to the petitioner Rs. 300 as the costs of this suit.... It is ordered that the above decree be forwarded, under Section 17 of Act IV of 1869, to the High "Court for confirmation." The order for custody of the child formed part of the decree, and we interpret the decree to mean that the order was not to be of effect until confirmed by the High Court. There has been no such confirmation.