Lal Das Vs. Nekunjo Bhaishinai - Court Judgment

Ainslie, J.

1. We decline to interfere with the order of the Magistrate. It is not for a Magistrate to determine the question who is the lawful guardian of a child. The provisions of chap. xli of the Criminal Procedure Code only enable him to make an order for the maintenance of his wife or child on its appearing to the satisfaction of the Court that he has neglected or refused to do so, although in the possession of sufficient means.

2. The child in this case is an illegitimate one in the custody of its mother, and there is nothing in the Code which warrants the Magistrate making an order for her surrendering it to the father. Her refusal to surrender it is no ground for stopping the allowance previously ordered. The father's right to the custody of the child, if any, must be determined elsewhere, and not in the Magistrate's Court.