Subbammal vs Alamelu Ammal

Yaha Ali, J.—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 u/s

552 of the Code of Criminal Procedure 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 Code of

Criminal Procedure. The expression ""unlawful"" has not been defined in the Code of Criminal Procedure but it has the same meaning as the word

illegal"" occurring in the Indian Penal Code. In the Code of Criminal Procedure, 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. u/s 552 of the Code of

Criminal Procedure 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 u/s 552 of the Code of Criminal Procedure Alamelu Ammal is directed to restore Saraswathi immediately to the

custody of Subbammal.