JUDGMENT - N.P. CHAPALGAONKAR, J.:---By this Criminal Appeal, the convicted accused Nos. 1 and 4 have challenged the order of conviction and sentence recorded against them by the learned Sessions Judge, Ratnagiri, on 7-3-1990 in Sessions Case No. 52 of 1978. Accused/appellant No. 2 is dead and therefore, we have to deal with accused/appellant No. 1 only. 2. It is the case of the prosecution that one Khatija, a minor girl was living with her mother. Accused No. 1 had developed friendship with Khatija. It is also admitted that he had sexual intercourse with Khatija resulting in pregnancy. Khatija is alleged to have been removed from the lawful guardianship of her mother and taken to Bombay, where she is married with accused/appellant No. 1. Accused/appellant No. 4 is alleged to have helped in the kidnapping and subsequent marriage of accused No. 1 with Khatija. It is also alleged that accused No. 4 was holding a power of attorney authorising marriage of Khatija with accused/appellant No. 1. Admittedly Khatija is now living with accused No. 1 as his wife and they have children also. 3. In all six accused persons were charged with the offences under sections 363, 363 r/w. 34, 376 and 366-A of the Indian Penal Code. The learned Sessions Judge who decided the case, was pleased to acquit accused Nos. 2, 3, 5 and 6 from all the offences charged and was pleased to convict accused/appellant No. 1 for offence under section 363 IPC and directed him to suffer rigorous imprisonment for 2 years. Both accused Nos. 1 and 4 were also found guilty for offence under section 363 r/w. 34 I.P.C. and accused No. 4 was sentenced to suffer rigorous imprisonment for one year on this count. No separate sentence was awarded to accused No. 1 on this count. Both the accused/appellants were acquitted from the charges under sections 376 and 366-A I.P.C. 4. It is the case of accused/appellant No. 1 that Khatija herself came to his house on 18-7-1977 along with the authorisation from her father in the name of accused No. 4, who happened to be the uncle of appellant/accused No. 1. Since she had attained puberty and was competent to marry a person of her choice, accused Nos. 1 and 4 brought Khatija to Bombay and her marriage with accused No. 1 was performed. 5. Since she had attained puberty and was competent to marry a person of her choice, accused Nos. 1 and 4 brought Khatija to Bombay and her marriage with accused No. 1 was performed. 5. The submission of Shri G.R. Rege, learned Counsel appearing on behalf of accused/appellant No. 1 appears to be that since the Mahomedan Personal Law permits a Muslim girl, who has attained puberty irrespective of her age, to marry a person of her choice, removing such a girl from the lawful guardianship for the purpose of such marriage would not be an offence in the eye of law and therefore, accused/appellant No. 1 cannot be said to have committed an offence under section 363 of the I.P.C. Shri Rege invited our attention to Clause 251 of the Principles of Mahomedan Law by Mulla to substantiate his submission. It reads as follows : "251. Capacity for marriage.---(1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage." Relying on this clause, Shri Rege submits that since the girl who has attained puberty has a right to marry any person of her choice, she can come out of the lawful guardianship and go along with such person for the purpose of marriage. The marriage being a lawful one leaving guardianship of the mother and going to the person with whom she wants to marry would be an act preparatory to the lawful marriage and therefore is not an offence. Khatija though was below 18 years of age, had obtained puberty and hence accused/appellant No. 1 would not be guilty of offence of kidnapping. According to Shri Rege, Khatija leaving the house of her mother and going with accused/appellant No. 1, who later married with him, would be merely a change of one guardianship to another and would not amount to kidnapping. 6. Shri Rege relies on a judgment of the Division Bench of the Patna High Court in the case of (Mohamed Idris v. State of Bihar)1, reported in 1980 Cri.L.J. page 764. 6. Shri Rege relies on a judgment of the Division Bench of the Patna High Court in the case of (Mohamed Idris v. State of Bihar)1, reported in 1980 Cri.L.J. page 764. In that case on a complaint filed by a Mahomedan that respondent No. 4 had enticed away respondent No. 5, his minor daughter with a view to marry her forcibly, the girl was produced before the Magistrate and the girl stated that she has gone to the respondent's house on her own accord and had married with him of her own volition. The Magistrate ordered the custody of the minor girl to the husband. On writ petition by the father, learned Judges were pleased to hold that the custody was rightly given to the husband since the marriage was a valid one. The girl attaining puberty was competent to marry a person of her choice and therefore, she can always live with the husband. We do not think that this judgment of the Patna High Court can further the cause of the appellant. If the question about the custody arises, the husband may have a better claim than the father, if the marriage is a valid one. But in the instant case we are not concerned with the custody of the minor Khatija. The offence is of enticing Khatija and making her to leave the guardianship of her mother. The offence is complete as soon as this has been done. The subsequent marriage of the appellant with Khatija would not absolve him of the criminal liability. The very judgment cited by Shri Rege in its para 5 recognises that such a girl would be a minor for the purpose of the Indian Majority Act and for the purpose of section 361 of the Indian Penal Code. Though a Muslim girl who has attained puberty, irrespective of her being below 18 years, would be entitled to marry a person of her choice, it would not justify a person enticing her and removing her from her lawful guardianship. Even if he subsequently marries the said girl, the criminal offence is complete as soon as he removes the girl from the lawful guardianship, and the subsequent assumption of the guardianship by the accused will not exonerate him. Even if he subsequently marries the said girl, the criminal offence is complete as soon as he removes the girl from the lawful guardianship, and the subsequent assumption of the guardianship by the accused will not exonerate him. If we accept the contention raised by Shri Rege, then it would mean that the protection awarded to the minor girls against the kidnapping by the Indian Penal Code is refused to the Muslim girls. Unless the statute makes an exception specifically, the personal law would not over-ride the statutory provision. Muslims are also entitled to the same protection of law as persons belonging to the other religions are entitled to. A minor is likely to be misled and abused and therefore, the provision penalising kidnapping. In the instant case it is not even disputed that the accused has friendship with Khatija. Not only this, it was also not disputed that he had sexual intercourse with Khatija before she was taken out of her lawful guardianship. This is sufficient evidence of enticing. Finding recorded by the learned trial Judge therefore deserves to be confirmed. The marriage has taken place subsequently and the same cannot legalise wrong earlier committed. 7. Section 361 of the Indian Penal Code which defines kidnapping, is reproduced below, so far is relevant : "Whoever takes or entices any minor under (sixteen) years of age if a male, or under (eighteen) years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship." It does not permit an exception on the ground of personal law of the accused or the victim. Competency of a Muslim girl to marry a person of her choice would not authorise any person to kidnap her. Therefore, we do not find any illegality in the finding recorded by the learned Judge against the accused/appellant No. 1 for offence punishable under section 363 of the I.P.C. 8. It now takes us to the quantum of sentence. Though technically offence is established, we do not think that any useful purpose will be served by sending accused/appellant No. 1 to the jail to serve the sentence recorded by the learned trial Judge. It now takes us to the quantum of sentence. Though technically offence is established, we do not think that any useful purpose will be served by sending accused/appellant No. 1 to the jail to serve the sentence recorded by the learned trial Judge. In view of the fact that the accused/appellant No. 1 is now married Khatija and they are living happily together with their children, it would be desirable that lenient view of the matter is taken and the accused/appellant No. 1 is not sent to jail again. We will also have to take into consideration that a period of about 13 years have already elapsed from the date of the alleged commission of offence. 9. We therefore allow the appeal partly, confirm the conviction recorded against the appellant/accused No. 1 for the offence under section 363 I.P.C. Rest part of the conviction recorded against accused/appellant No. 1 are set aside. Further we quash the sentence awarded by the learned trial Judge and substitute it with imprisonment for a day and a fine of Rs. 500 and in default of payment of fine, appellant/accused No. 1 is directed to suffer simple imprisonment for a period of one week. 10. Accused/appellant No. 1 is on bail. He shall surrender to the bail before the learned Sessions Judge, Ratnagiri, within a period of 15 days from today, failing which the learned Sessions Judge, Ratnagiri, will take further steps to arrest him and make him to suffer the sentence awarded by us. Appeal is partly allowed. Appeal partly allowed. *****