The main legal point established in the judgment is the interpretation of 'lawful guardianship' under S.361 of the IPC and the distinction between the mother's right to custody and the father's natural and legal guardianship.

1. The accused in C. C. No. 13/1966 of the Sub Divisional Magistrate's Court, Ponkunnam, have filed the revision petition against the orders convicting them of offences punishable under S.363, 448 and 451 read with S.34 of the IPC., and sentencing each of them to undergo four months' simple imprisonment for offence under S.363.

2. The 2nd accused is the husband of Pw.1. A-1 and A-3 are the relatives of the 2nd accused. The 4th accused is a stranger. Pw-1 and A-2 have a male child, Sagar by name. At the relevant time he was aged 2 1/2 years. They were residing in the house of the 2nd accused. Pw.1 did not, however, like to live with the 2nd accused and so she along with the child went to her father's house; and at the time of the occurrence she was residing in her father's house with the child. On 6121965 at about 5 p.m. the 2nd accused along with the other accused came to the residence of Pw.1 and got into the court-yard of the house. At that time Pw.1 was sitting on the verandah of the house with the child. The prosecution case is that the 1st accused came and sat by the side of Pw.1 and then the 2nd accused asked him to do away with Pw.1 and take the child and come. The 1st accused snatched the child from Pw.1 and all the accused proceeded to the car which was waiting on the road for taking them. But by the time the neighbours collected in front of the car and the car was not allowed to proceed. So accused 1 and 2 ran away with the child and got into a jeep driven by Pw. 4 and got down at the 2nd accused's sister's house. Pw.1 complained to the police about the act of the accused. The police after investigation filed the charge.

2. The learned Magistrate came to the conclusion that the accused were guilty of the offences under the sections mentioned above, and convicted them of the offences. An appeal was filed by the accused. The appeal was dismissed.

3. The main question for consideration in this case is whether the accused have taken the child from the keeping of the lawful guardian. The courts below have found that the parties are governed by the Sunni School of Mohammedan law. The mother is entitled to the custody of a male child until the child reaches the age of 7 under the Sunni school of Mohammedan law, and 2 years of age under the Shia school. See 'Principles of Mohammedan Law' by D. F. Mulla,15th Edn., page 297. In Imambandi v. Mutsadai 45 I. A. 73 their Lordships of the Privy Council said:

"It is perfectly clear that under the Mohammedan law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under the Suuni law) is the legal guardian".

In 'Muslim Law as Administered in British India' by K. P. Saxena, 2nd Edn., page 385, after quoting the above observation of the Privy Council it is said:

"Thus it is quite evident from this passage that the father is the primary and natural guardian of his minor children, and that the right of custody of the mother and the female relations mentioned above are subject to the supervision and control of the father to which he is entitled by virtue of his natural guardianship of the infant. If that be so, the right of hizana does not confer upon the mother all the powers of a guardian of the person of a minor under the Guardians and Wards Act, 1890."

In 'Macnaghten's Principles of Mohammedan Law' 3rd Edn., page 62, it is stated: "Guardians are either natural or testamentary Of the former description are fathers and paternal grand-fathers and their executors and the executors of such executors."

In'Outlines of Muhammadan Law' by A. A. Fyzee, 3rd Edn., page 189, it is observed:

"The custody of an infant child belongs to the mother; this right is known as hidens (loosely spelt in India Hizanat.) The mother is entitled in Hanafi law to the custody of her male child till the age of 7 years, and of her female child till pu