SUBBAMMAL Vs. ALAMELU AMMAL

JUDGEMENT

(1.) ONE Govinda Chetti had two wives, Subbammal, the petitioner and Alamelu Ammal, the counter-petitioner. By the former he had a daughter Saraswathi aged 7 years. After his death, the two wives and the little girl were living together. Subbammal's case is that when she went to some village tempo-rarily and returned, Alamelu Ammal refused to hand over custody of Saraswathi to her. She filed an application under Section 552 of the Criminal P. C. to compel restoration of Saraswathi to her. The senior widow stated in the Magistrate's Court that the conduct of Subbammal was immoral, that she had eloped with one Elumalai and that Govinda Chetti, before his death, had entrusted to-her the custody of the child in view of Subbammal's immoral conduct. Evidence was adduced on both sides but the Magistrate did not give any findings on any of these points. Subbammal stated in her application that the intention of Alamelu Ammal in detaining the girl was to get her married to a relation of Alamelu. The Magistrate found that no unlawful purpose had been established and dismissed the application. In coming to that conclusion I apprehend that the Magistrate took a very narrow view of the meaning of the word "unlawful" occurring in Section 552 of the Criminal P. C.. The expression "unlawful" has not been defined in the Criminal P. C. but it has the same meaning as the word "illegal" occurring in the Indian Penal Code. In the Criminal P. C., after setting out the definitions, it is stated at the end of Section 4 that all words and expressions used in this Code and defined in the Indian Penal Code, and not hereinbefore defined, shall be deemed to have the meanings respectively attributed to them by the Indian Penal Code. In the Indian Penal Code the word "illegal" is defined in Section 43 as applicable to everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action. Under Section 552 of the Criminal P. C. what has to be established is that the detention of the child was unlawful and that the purpose of the detention was unlawful. If the detention was one which furnished a ground for a civil action it would be illegal within the meaning of that definition. In the present case there can be no doubt that the natural mother is the legal guardian and is entitled to the custody of the child. The stepmother has no right whatever to that custody unless she gets herself appointed by Court as a guardian under the Guardians and Wards Act. The Act of the person, who is not entitled to custody, of detaining the child is one, which entitles the natural guardian to take civil action. The detention is therefore clearly unlawful. It must also be held in the circumstances that the purpose was unlawful, as it has not been proved that Alamelu Ammal was entitled in any manner to keep the child in her custody and to dispose of her as she pleases. That is a matter which she will have to establish in appropriate civil proceedings and until she does so, she is not entitled to keep the child away from the custody of her natural mother. The petition is allowed. The order of the Magistrate is set aside and under Section 552 of the Criminal P. C. Alamelu Ammal is directed to restore Saraswathi immediately to the custody of Subbammal.