Full Judgment
Wilson, J.
1. The conviction in this case was one under Sections 109 and 363 of the Penal Code for abetting the offence of kidnapping. Upon the appeal two questions were argued: first, whether the substantive offence was committed; secondly, whether there was sufficient evidence of abetment. The second question we may dismiss at once by saying that if the substantive offence was committed, there was ample evidence of abetment. The real question is as to the kidnapping. The facts proved appear to be the following:
2. Parameshwari, the wife of Uma Churn Pattuk, left her husband's house at night, taking with her a daughter of six or seven years old and a son still younger. She went to the house of a cousin of her, who lived in a house in the same homestead with the accused and his younger brother Guru Dass. The same night Parameshwari gave her daughter in marriage to Guru Dass. The leaving of her husband's house with the daughter and the marriage of the latter to Guru Dass took place in pursuance of a previous arrangement between Parameshwari and the accused: and the marriage was without the sanction or knowledge of the girl's father. It was proved that Parameshwari had been subjected to some degree of cruelty at the hands of her husband, but the Court below did not find, nor do we think it could rightly have found, that the cruelty was such as to justify her in leaving her husband's house, even if that fact, had it been proved, could have affected the present charge, which we are inclined to think it could not have done.
2. There is no question that, by the Hindu law a father is the guardian of his children and is ordinarily entitled to their custody. But it was suggested that, in the case of a very young child, the mother has as good a right to the custody as the father, and even possibly a better. So that the taking of the child by the mother was not a taking out of the keeping of the lawful guardian within the meaning of Section 361 of the Penal Code. And in support of this a passage was cited from the work of Dr. Gurudass Banerjee on the Law of Marriage and Stridhan, page 172. But we are unable to find any authority for the proposition that a mother can ever have a right to the custody of her legitimate children adverse to the father. And such a view seems to us inconsistent with the principles governing the Hindu law in such matters. Of course, under any ordinary circumstances, the custody of the mother is the custody of the father, and any removal of the children from place to place by the mother ought to be taken to be consistent with the rights of the father as guardian and not as a taking out of his keeping. But the present case is very peculiar. The mother removed the girl from the father's house for the express purpose of marrying her without his consent, and thereby depriving him for ever of her guardianship and custody. This did, we think, amount to a taking out of the keeping of the lawful guardian. The conviction is, therefore, right.