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Criminal Revision No. 22 of 1950, decided on 9th June, 1950.

, S. 366‑Guardian for marriage of Muhammadan minor girl kidnapping minor from custody of guardian of person‑Whether not an offence‑Plea that minor's will does not matter no defence---- "Her will" means the will of the girl, not that of her guardian.

The fact that the accused was at the relevant time minor girl's guardian for marriage is no defence to a charge under section 366 Pakistan P. C.

Though a paternal cousin according to Muhammadan Law, has right to contract the marriage, he has no right to kidnap the minor girl from the custody of her guardian of person or to compel her to ratify and accept a marriage contracted by him.

If the girl is kidnapped with the intention of compelling her to go through a form of marriage whether valid or not, the case would come within the mischief of the section.

The contention that as a minor has no authority to con tract her marriage, the guardians having the authority to contract it, the minor's " will" does not matter, and what matters in a case under section 366 is the " will " of the guardian is without substance.

Taher Khan v. Emperor, I L R 45 Cal. 641 ; Fulchand Tepriwalla 4. Emperor, 36 C W N 49 ; Khalil‑ur‑Rahman v. King Emperor, I L R 11 Rang. 213 F. B., rel.

Khem s v. Emperor, 27 Cr. L. J. 851 ; Sultan v. Emperor,

31 Cr. L J ; Emperor v. Safdar Reza, I L R 49 Cal. 905, ref.

K. A. Salam Khan, for Petitioner.

Salahuddin Ahmed for Deputy Legal Remembrancer, for Crown.

--‑The petitioners were tried by the learned Assistant Sessions Judge of Faridpur with the aid of Assessors and were convicted and sentenced by him under sections 147 and 366 of the Pakistan P. C. On appeal the learned Sessions Judge upheld the conviction under both the sections and set aside the sentences under section 147 of the Penal Code and reduced the sentences under section 366 of the Penal Code to rigorous imprisonment for two years in the case of Adam Ali Khalifa and to rigorous imprisonment for 18 months in the case of each of the other accused petitioners. The petitioners then filed a petition in this Court for revision and this rule was issued calling upon the District Magistrate of Faridpur to show cause why the convictions and sentences complained of in the petition moved in the Court, should not be set aside and in the event of the convictions being upheld, why the sentences should not be enhanced.

The rule, so far as it relates to the question of enhance ment, was issued, as it appeared from the judgment of the Court below that the girl in question was at the time of the occurrence, virtually in the custody of the Court. It may be observed here that from the evidence it appears that the learned Court below was wrong in taking the view that the girl was virtually in the custody of the Court. The evidence shows that she was not in a better position than any other witness who executed bond for appearance.

The material facts of the case out of which the charges arose are not in dispute in this Court and may be stated as follows :‑P. W. 4, Kulsum was the victim of the occurrence. At the time of the occurrence she was below 16 years of age. She is the daughter of the Yasin Khalifa of Charnarayanpur within the Police Station Pangsha, district Faridpur. Yasin Khalifa died about five years before this occurrence which took place on the 18th September, 1948. He left behind Kulsum as his only issue, Kulsum's mother as his only widow, P. W. 1, Khenonnesa Bibi as his only sister and the petitioner Rustam Ali Khalifa, his nearest male relative on the paternal side, being the son of his paternal cousin, Ashraf. Rustam Ali is also an inhabitant of Charnarayanpur where he resides in his own house which is quite distinct and separate from the house of Yasin Khalifa. Evidence does not disclose that there was any particular attachment between Yasin Khalifa and Rustam Ali beyond the somewhat distant relationship of uncle and nephew. Khenonnesa resides in Shailkupa in the district of Jessore in her husband's house.

Yasin Khalifa was a man of substance and left considerable property including a house containing two corrugated iron sheds. About a year after his death, his widow also died. In these tragic circumstances, Khenonnesa, the paternal aunt, took charge of Kulsum and took her to her husband's house in Shailkupa and brought her daughter and her son‑in‑law Majiruddin alias Majibar to the house of Yasin Khalifa to reside there and to look after the property left by Yasin Khalifa. In January 1948, petitioner Adam Ali Khalifa insti tuted a case under section 498 of the Penal Code against Majiruddin, the son‑in‑law of Khenonnesa, her son Kiamuddin Khalifa (P. W. 2), her maternal cousin's son Kanai Khalifa (P. W. 3) and her behai Abdul Aziz Khalifa (P. W. 6),. in the Criminal Court at Rajbari. His case, in substance, was, as it appears from the judgment, Exhibit 6, that he had married Kulsum through petitioner Rustam Ali Khalifa who acted as her ukil and that the aforesaid persons whom he made accused took her away with evil intention. Majiruddin, Kiamuddin, Abdul Khalifa and Kanai Khalifa were summoned in that case' and a search warrant was issued for the production of Kulsum. The persons who were summoned appeared in Court and some witnesses were examined. Then on the 31st August, 1948, Kulsum appeared in Court. Evidence shows that she was ac companied by Khenonnessa. A bond was taken from her for her appearance. P. W. 14 Indu Bhusan Mallik stood surety. The case was then adjourned to the 18th September, 1948, for further hearing. 'The evidence shows that Kulsum was taken back by Khenonnesa to her house at Shailkupa. On the 17th September, 1948, that is, the day preceding the date of hearing, Khenonnesa started with Kulsum to go to Rajbari to attend Court on the following day in the company of Kiamuddin, P. W. 5 Muhammad Akmal Hossain, P. W: 3 Kanai Khalifa and P. W. 6 Abdul Aziz Khalifa, they boarded the train in the latter part of the night at Khoksha Railway Station. The train 'vas overcrowded. Khenonnesa, Kulsum; Muhammad Akmal Hossain and Abdul Aziz succeeded in getting into the compartment and Kiamuddin and Kanai Khalifa did not find accommodation inside the compartment. They stood on the foot‑boards on the two sides catching the handle of the com partment. The train reached Maspara Railway Station some time before the break of the day. As soon as the train stopped there, a man from inside the, compartment, shouted saying, "This is the compartment. This is the compartment." Then the petitioners rushed towards the compartment variously armed, some of them pressed down Kanai Khalifa and Kiamuddin so that they might not offer any resistance ; several of them entered into the compartment and forcibly carried away Kulsum against the protest of Kulsum and Khenonnesa and their companions. The accused party then took Kulsum to a boat which was there and went away. Khenonnesa with the companions, continued journey after the tragic happening and reached Rajbari on the following morning and then instituted this case.

According to the evidence of Kulsum, she was kept confin ed in various places after she was kidnapped The criminal case under section 498 of the Penal Code ended in acquittal on the 31st January, 1949. On the 11th March, 1949, Kulsum was taken to the house of D. W. 2 Maulvi Abdul Jalil, a Pleader of Rajbari; with the object of filing a compromise petition in a suit for restitution of conjugal rights which Adam Ali Khalifa is alleged to have instituted against her. A solenama already prepared and signed by Adam Ali's Pleader was produced before Maulvi Abdul Jalil and in his presence the thumb‑impression of Kulsum was taken on this document. What happened to the solenama afterwards is not clear from the evidence. D. W. 2 Maulvi Abdul Jalil could not say whether it was filed or not in any such suit. But the defence case is that it was filed in the suit and a compromise decree was obtained by Adam Ali Khalifa on the basis of this solenama. During the inquiry in the committing Court in this case, Kulsam was produced in Court by Adam Ali on the 30th April, 1949. Under orders of the Court, she was examined by the Medical Officer P. W. 7 2. She was then made over to the custody of Khenonnesa. She has fully supported the prosecution case and both the Courts below have, as already mentioned; come to the finding that the charges under sections 147 and 366 of the Penal Code have been brought home to the petitioners.

To appreciate fully the force of the first ground taken by Mr. Salam who has appeared for the petitioners in this case, it is necessary to state that under the Muslim law, as between the maternal and paternal aunts, the maternal aunt is the preferential guardian of the person of a minor. Mr. Salam's case is that the mother of Haran and Tasiruddin who are two brothers, is maternal aunt of Kulsum and as such she was, at the time of occurrence, the legal guardian of her person accord ing to law. Following this line of argument he has further urged that as the petitioners took Kulsum at the instance and in assertion of the right of the aforesaid maternal aunt, the petitioners committed no offence of kidnapping as defined in section 361 of the Penal Code, and consequently cannot be held guilty on the charge under section 366 as the essence of that charge in this case is kidnapping. Both the Courts below have, on a thorough consideration of the evidence and circum stances of the case, come to the conclusion that it was not established on the evidence that the mother of Haran and Tasiruddin was the maternal aunt of Kulsum. We see no reason absolutely to take a different view. There is not the slightest evidence to show that the misdeed of the petitioners which they sought to justify as having been authorised by the mother of Haran and Tasiruddin was never authorised by her She did not come to Court to take oath and to assert her right even though two of her sons were implicated in this case. If she was the maternal aunt, the best person to establish that was she herself. But she, as already mentioned, was not examined. Of the 4 witnesses examined by the defence, D. Ws. 1 and 4 only are men of the locality, D. W. 2 is the Pleader Maulvi Abdul Jalil and D. W. 3 is a Doctor who examined Kulsum under orders of the Court at the request of the defence on the 10th August, 1949. The defence made no attempt to get anything on this point from D.W. 4 Muhammad Kafizuddin Molla. The only witness examined to establish the alleged relationship was D. W. 1. This witness stated in his examination‑in‑chief: "I know accused Tasiruddin and Haran. Their mother and Yasin's wife were sisters." In cross‑examination he said : I cannot give the name of Haran's father. I do not know the name of Yasin's paternal grand father." In another part of his evidence he said that he never went to Haran s house. He knew Haran as he used to go to his village. He is thus not a man competent to speak about the relationship. He was witness for Adam All in the case under section 498 of the Penal Code. From what has been stated above it would be evident that his evidence is not reliable. All the witnesses examined by the prosecution have denied the alleged relationship. Mr. Salam's contention, there fore, fails.

The next point taken by Mr. Salam is that in any case there cannot be any conviction under section 366 of the Code. He seeks to support this contention in two ways. Firstly, his case is that Kulsum was married to Adam Ali Khalifa before this occurrence and consequently no question could arise of kidnapping Kulsum by Adam Ali and his accomplices with the intent that she might be compelled to marry against her will. Obviously the first point that has to be established in order that this plea may succeed is that there was, in fact, a marriage between Adam Ali and kulsum before the occurrence. The Courts below have disbelieved the story of this alleged marriage. There can be no question that the evidence in this case fully justifies the view taken by the Courts below It is said that there was a kabin of this marriage. That has not been produced in this case. The molla and the witnesses, who must have helped the solemnization of the marriage, if it actually took place have net been examined. The alleged compromise decree in I the suit for institution of conjugal rights also has not been produced. There is thus no evidence of marriage the contention must be rejected.

Mr. Salam's next and last contention is based upon Rustam's relationship with Kulsum. Rustam is Kulsum's nearest paternal cousin and, as such, was, under the Muslim Law, her guardian of marriage at the time of the occurrence when she was a minor. The contention of Mr. Salam is that as he had the authority to contract Kulsum's marriage, neither he nor the other petitioners who were his accomplices, can be convicted on a charge under section 366 of the Code. Section 366 runs thus: "Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compul sion, induces any woman to go from any place with intent that she may be or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid." Mr. Salam contends that as a minor has no authority to contract her marriage, the guardians having the authority to contract it, the minor's "will" does not matter, and what matters in a case under section 366, is the "will" of the guardian and no offence is committed under this section unless the girl is taken with the intent of marrying her against the will of the guardian. In plain words, his contention is that the words "against her will" must be read as "against the will of her guardian". This argument is, no doubt, ingenious but' certainly without any substance. It is not necessary under this section that the girl should be kidnapped with the intent of contracting a valid marriage. If the girl is kidnapped with the intention of compelling her to go through a form of marriage whether valid or not, the case would come within the mischief of the section. In the case of Taher Khan and others v. Emperor I L R 45 Cal. 641, it was held "Section 366 of the Penal Code applies to the case of abduction of a married woman with intention to compel her to marry. The word marry' therein implies, as in section 494, going through a form of marriage whether the same is, in fact, valid or not." In the case of Fulchand Tapriwala v. The Emperor, 36 C. W. N. 49, the same conten tion, as has been raised by Mr. Salam, was negatived in these clear words : "will" referred to in the first part of the section, means the will of the girl and certainly does not mean the will of her guardian." In support of his contention Mr. Salam has referred to the case of Khem Das v. Emperor, 27 Cr. L. J. 851, of Sultan and others v. Emperor, 31 Cr. L J 85 and of Emperor v. Safdar Reza, I L R 49 Cal. 905, and certain other cases. The first was a case of elopement. It was held there "Consent of the girl makes no difference to the offence but it has a bearing on the sentence." The second case also was a case of elopement. It was observed "Section 366 of the Indian P. C. is an aggravated form of section 363 of the Code.

The consent of the girl does not exonerate the seducer. In the third case two girls were kidnapped. It transpired that the girls had left the house of the guardian with the intention of having illicit intercourse with the accused. The charge in the case was that the girls had been kidnapped with intent that they might be seduced to illicit intercourse. The accused was convicted. These decisions were undoubtedly in accord with the provisions of section 366 of the Penal Code but certainly do not support the contention of Mr. Salam. The essential question is not what the conduct of the woman was the essential question is whether the accused had the particular intent or knowledge mentioned in the section. The character, conduct and the capacity or incapacity of the woman to consent to marry or have illicit intercourse, must indeed, be taken into account in determining whether the accused had this intent or knowledge, but these are not the fundamentals of an offence under section 366 of the Penal Code. "The intention of the accused" observed Their Lordships of the Rangoon High Court in Khalil‑ur‑Rahman v. King Emperor I L R 11 Rang. 213 (F.B.) "is the basis and the gravament of an offence under section 366. It follows that in considering whether an offence has been committed under this section the volition, the intention and the conduct of the woman are nihil ad rem, except in so far as they bear upon the intent with which the accused kidnapped or abducted her. If the accused kidnapped or abducted the woman with the necessary intent the offence is complete whether or not the accused succeeded in effecting his purpose, and even if in the event the woman in fact consented to the marriage or the illicit intercourse taking place." The decisions cited by. Mr. Salam are fully in harmony with this view but do not afford any scope for the proposition advanced by him.

Now, the paternal cousin's right to contract marriage for a minor Muslim girl is subject to the latter's right of repudia tion technically called the option of puberty. It is significant that though Muslim Law confers guardianship of marriage on the paternal cousin in certain circumstances, it excludes him from the guardianship of person for the reason that he is not within the prohibited degree. The underlying object is that he should not have any opportunity to force the will of the minor. The position is this that though a paternal cousin has right to contract the marriage, he has no right to kidnap the minor girl from the custody of her guardian of person or to compel her to ratify and accept a marriage contracted by him I. The fact that Rustam was, at the relevant time, Kulsum's guardian ,of marriage, is thus no defence. The conviction must in these circumstances be upheld. Having regard, however, to the fact that Kulsum was not subjected to the kind of ill-treatment, to which kidnapped girls are usually subjected to, we think that a sentence of rigorous imprisonment for one year in case of Adam Ali and of rigorous imprisonment for nine months in case of each of the other petitioners would be sufficient to meet the ends of justice and we reduce the sen tences accordingly.

The rule is disposed of in these terms.

The rule for enhancement is discharged.

---‑I agree.

A.H. Conviction upheld

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