NANKU Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal on behalf of four persons Nanku, Asharfi Singh, Shankar and Ramlal who have been convicted by the Sessions Court of Budaun under Sections 148 and 352/149, Indian Penal Code, and Shankar has also been convicted under Section 19(f), Arms Act. Sentences of one and two years R.I. under Section 148 and three months and one month's R.I. under Section 352/149, Indian Penal Code, have been imposed and an additional one year's R.I. under the Arms Act on Shankar. The circumstances are somewhat peculiar. It is admitted that the accused Nanku, whose age is given as 20 years, was married four years ago to a child Mt. Chandrakali whose age is about ten years and her age at that period was apparently six years. She stayed with her husband for 15 days only after the marriage and she was then brought back to the home of her father Durga Prasad. Durga Prasad refused to allow his daughter to go back to her husband. The reason which he has given in cross-examination is "I do not send my daughter to her husband as she is too young and as her husband cannot support her properly." For the defence it was alleged that Durga Prasad had some intention of remarrying her to someone else. Learned Counsel alludes to a passage where Durga Prasad states "In our community a woman can be remarried" ("hamlogon men dusri shadi hai"). But this passage apparently means that widows can be remarried and it does not mean that a woman who has her husband alive can be remarried in this caste of Sunars. Learned Counsel points out that the allegation that Durga Prasad was going to marry his daughter to someone else was pleaded by the accused to the committing Magistrate; but the mere making of an allegation is no proof and there is no evidence on the record that Durga Prasad had any such intention. In fact Durga Prasad specifically denied that he ever said anything of the sort to Nanku.

(2.) Now, Nanku desired to obtain possession of his wife and learned Counsel argues that it was legal for him to obtain possession of her because as her husband he was entitled to be her legal guardian. Learned Counsel refers to Mulla's Principles of Hindu Law, Edition 7, paras. 442 and 443, where it is staled that the husband is a lawful guardian of his minor wife and is entitled to require her to live with him however young she may be, unless there is a custom enabling the wife to live with her parents until she has arrived at puberty. In para. 444 the remedy of the husband is stated to be a suit for restitution of conjugal rights, and in para. 442 no agreement between, the parties would be an answer to such a suit. But it is not written anywhere in Mulla that a husband has any right to enforce his rights over his wife otherwise than by a suit in the Courts. Learned Counsel Mr. Bradley for the appellants contends that this is a case in which Nanku was entitled to take his wife away, whether she desired to come home or not; in other words that it was a case where a man is entitled to the doctrine of self-help. He relies on Section 89, Indian Penal Code, which states: Nothing which is done in good faith for the benefit of a person under 12 years of age or of unsound mind by or by consent either express or implied of the guardian or other person having lawful charge of that person is an offence by reason of any harm which it may cause...to that person.

(3.) To obtain the benefit of this exception it is necessary to show that the act was done for the benefit of the, minor. In the present case it appears that Nanku desired to have possession of his wife for his own benefit. But it does not follow that for Nanku to obtain possession of the person of his wife would be for her benefit. She has not attained the age of puberty and apparently the presumption is that Nanku desired to have her for the purpose of having sexual connexion with her. This purpose is one which it is the policy of the law to prevent. Under Act 19 of 1929, an Act to restrain the solemnisation of child marriages, otherwise known as the Sarda Marriage Act, it is stated to be an offence if after 1 April 1930, when the Act came into force, any marriage is celebrated with a female under 14 years of age. Now the marriage in question having taken place four years before the Sessions trial in 1935 must have taken place in 1931, that is after this Act came into force. The celebration therefore of this marriage was a criminal offence. Clearly it is against the policy of the Act that a husband should obtain possession of his wife if she has not attained the age of 14 years laid "down in the Act. I cannot therefore consider that the obtaining possession of this minor by Nanku would be for her benefit as the law clearly provides that such marriages shall rapt take 1 place. No doubt the Act does not make the marriage illegal and after the girl has attained 14 years the objection would no longer arise, but the girl is at present only 10 years of age and the objection does not exist. Moreover this question of guardianship for which learned Counsel relied on two rulings : Emperor V/s. Sital Prasad 1919 All 36, at p. 149 and Saharali Mahommad V/s. Kamizuddin Mahammad 1931 Cal. 446, is a question which has arisen in connexion with convictions under Section 366, Indian Penal Code., for kidnapping from lawful guardianship. In the present case the trial and convictions are not under that section, but are under Secs.148 and 352/149, Indian Penal Code.