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1980 DIGILAW 95 (KER)

MANAKUTTY v. AYYAPPAN

1980-04-02

P.JANAKI AMMA

body1980
Judgment :- 1. The petitioner is the mother of 'Sheela' stated to be a minor aged 161/2 years. The father of Sheela is no more. The petitioner together with her three daughters and the husband of her eldest daughter was living in her house at Ayyanthole. Sheela the youngest of the three daughters is a student in the Pre-degree Class in the Government College, Trichur. On 14-3-1980 at about 9 P.M the petitioner gave a complaint to the Sub Inspector of Police, Trichur West Police Station, that 'Sheela' who had gone to sleep at 10 P. M. on 13-3-1980 was found missing in the morning and that on enquiry she came to know that her neighbour Ayyappan induced her to leave her home on a promise to marry her, that she took her to the Registry Office and got an agreement of marriage registered and that the accused and the minor girl were living at Velarkavu. On the basis of the statement, Crime No. 22 of 1980 was registered under S.366 IPC., and it is under investigation. 2. 'Sheela' and accused 'Ayyappan' were taken into custody from the house of one Velayudhan on 15-3-1980. Sheela was produced before the Judicial Magistrate, 2nd Class, Trichur-1, on the same day. It appears that Sheela refused to go with her mother. Thereupon, the Magistrate sent her to the Superintendent, Rescue Home, Ernakulam, with a direction to detain her in her custody until further orders. This order is challenged in the present proceedings. The order, according to the petitioner, is illegal and without jurisdiction. The petitioner being the lawful guardian, the Court, according to the petitioner, should have entrusted the girl to her custody. The petitioner apprehends that detention in the Rescue Home would spoil the girl's character and would prevent her from continuing her education. The petition is filed under S.397,401 and 482 of the Code of Criminal Procedure. 3. The second respondent in the petition, Ayyappan, is the accused in Crime No. 22 of 1980. He appeared and opposed the petition and claimed that Sheela is aged 19 years, that she is married to him and that she should be allowed to live with him. After hearing the advocates appearing for the parties and the Public Prosecutor I directed Sheela to be brought before Court. He appeared and opposed the petition and claimed that Sheela is aged 19 years, that she is married to him and that she should be allowed to live with him. After hearing the advocates appearing for the parties and the Public Prosecutor I directed Sheela to be brought before Court. She was produced in my Chamber on 1-4-1980 and I questioned her in the presence of the counsel. She expressed her unwillingness to stay with her mother. She apprehends that her mother and her close relations would negotiate another marriage and would use force to see that she is married to a person other than the person of her choice. She is agreeable to continue to her stay in the Rescue Home till she attains majority and becomes eligible for a legal marriage with the second respondent. 4. The issue that is posed before me is whether Sheela should continue her stay in the Rescue Home or whether the petitioner, her mother, should be allowed her custody. It may be stated here that the consistent case of the second respondent is that Sheela is aged nineteen years, that she is not a minor and that she should be allowed to go with him. 5. As already stated a case under S 366 IPC. has been registered against the second respondent and it is under investigation. The age of Sheela would be a matter in issue if the second accused is to be tried for an offence under S.366 IPC. The mention of the age of Sheela in the present proceedings is based on prima facie materials and is not intended to hamper a decision on the point by the Court which may have to try the case against the accused. With this preface, I may state that the certificate of baptism and the abstract from the register of admission, IJULPS Aranattukara, made available to me for reference, show that Sheela was born on 12-7-1963. She is therefore a minor. There is no scope for dispute in that and the petitioner, in the absence of her father, is her legal guardian and is in the ordinary course entitled to her custody S.98 of the Code of Criminal Procedure deals with the power of the Court to compel restoration, in certain cases, of a female child under the age of eighteen years, upon a complaint made by her parent or guardian. The section reads: "98. Power to compel restoration of abducted females. Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary." The section may not apply strictly in the instant case as there has been no complaint to any Magistrate mentioned therein and the so called unlawful custody has ceased to exist on the minor being sent over to the Rescue Home. 6. The further question is whether the Court should allow the custody of the Superintendent of the Rescue Home to continue. In matters relating to custody of a minor the predominant consideration should be the welfare of the minor. While it is open to the Court to take into account the views of the minor, if she is capable of forming an intelligent opinion, the Court is not bound to accept the choice of the minor if such a course may not be in the interest of the minor. The willingness of the minor to continue her stay in the Rescue Home need be acted upon only if it is conducive to her welfare and if it is practicable. The Rescue Home and the Rescue Shelters are institutions started for the proper working of the provisions of the Suppression of Immoral Traffic in Women and Girls Act. Under the rules governing such homes the following ire the persons who are to be admitted there: (a) All persons ordered to be detained under the provisions of the Suppression of Immoral Traffic in Women and Girls Act; (b) persons rescued from moral danger by the police or other social welfare agencies;-(c) young women who fear moral danger and seeking admission voluntarily. Admission of category (a) is to be given only to those of the Rescue Home and Shelters which are Protective Homes under the S. I. T. Act. 7. Evidently, the minor in the instant case does not fall under any of the categories. Admission of category (a) is to be given only to those of the Rescue Home and Shelters which are Protective Homes under the S. I. T. Act. 7. Evidently, the minor in the instant case does not fall under any of the categories. The rules of the institution may not provide segregation of the different classes of inmates and therefore to admit the minor in the Rescue Home or to allow her to remain there would mean affording her opportunities to associate with undesirable elements. Such a course is not in the interest of the minor. The Magistrate should not have ordered her custody in the Rescue Home. This Court will be doing an irresponsible act if she is permitted to continue her residence in the Rescue Home. 8. This Court had occasion to consider the question of custody of a minor girl in respect of whom an offence under S.366 I.P.C. was alleged in Kunhikannan v. State of Kerala 1976 KLT. 862. The absence of guideline in the Code of Criminal Procedure, for the Courts to follow in such cases has been pointed out in that decision. Khalid J., also observed: "Courts will have difficulty in certain cases in making a proper order of entrustment. In such cases, it has to be borne in mind that the parents have the natural right to custody of their children. As a rule, Courts should without any hesitation entrust the custody of such girls to the father or mother. Discretion is left to the Court in choosing either of the parents after ascertaining the wishes of the girl and the circumstances of the case. I do not think that the criminal Courts even under extremely compelling reasons should depart from this rule. Even where a girl expresses her unwillingness to go with her father or mother, the Court should prefer the parents' company to that of a prison. Very stringent conditions can be imposed on the father or mother when a girl is to be entrusted to them against her will." I may add that it is the duty of the Court to take into account all the circumstances of the case and decide what course is most suited to the facts of the case. Very stringent conditions can be imposed on the father or mother when a girl is to be entrusted to them against her will." I may add that it is the duty of the Court to take into account all the circumstances of the case and decide what course is most suited to the facts of the case. The Court should not overlook the fact that the parent of a child is the person who will be most interested in its welfare and when he or she moves the Court for the custody of the child, his or her request deserves most serious consideration and should not be discarded lightly. In the instant case the girl's reluctance to go with her mother is mainly due to her apprehension that she would be compelled to marry a person who may not be of her choice and that she may be subjected to chastisement for what has happened. There is no case for her that her mother does not love her or would not look after her. 9. On behalf of the second respondent a proposal was made that the girl might be kept in a Convent, the expenses being met either by himself or the mother. The second respondent is a stranger to the family and is not entitled to put forward any claim over the girl so long as she is a minor. The petitioner is not amenable to the above proposal. The minor also had nothing to say to the above suggestion. I do not think that there is any necessity to keep the minor in a Convent 10. After a serious consideration of the different aspects of the matter I hold that it is in the interest of the minor, Sheela, that her custody is entrusted to the petitioner, her mother, with the following directions: (1) that she will not be given in marriage before she attains majority; (2) that she should be kept at the place where the petitioner lives, either in the house where the petitioner now stays or in the residence of the sister of the minor at Pattikad. In case she is to be taken to Pattikad, the mother also should live at the place; (3) that she should not be subjected to ill-treatment or harassment for her past conduct; (4) that she should be looked after properly and treated with kindness; (5) that she should be taken to the 2nd Class Magistrate I Trichur, once in a month so as to give her an opportunity to make necessary representation in Court regarding the treatment meted out to her. The petitioner will execute a bond agreeing to the above conditions before the 2nd Class Magistrate, Trichur. On the bond being executed, the Magistrate will "permit the petitioner to take the minor from the Rescue Home, Ernakulam. The first respondent-State will reader necessary police protection to the petitioner in case it is found necessary.