1. The applicant Naimuddin was the husband of Mst. Nasim Bano respondent. Their marriage took place in 1965. Later on `their relations became strained. It was alleged by Mst. Nasim Bano that in 1967 she was beaten and turned out of the house by her husband who had also detained the two minor children. She, therefore, took proceedings in the civil Court for the custody of the minor children. A compromise was reached and the children were given to her on 15th June 1967.
2. Thereafter two more children were born.
3. It was further alleged by Mst. Nasim Bano that again on 1st October 1970, she was beaten and wrongfully confined and she was rescued by the police but during this period the applicant had detained the minor children and concealed them. On 7th October 1970, her husband divorced her.
4. On the basis of these allegations, a complaint was filed on 30th December 1970, under sections 363, 344 and 346, P. P. C. Process was issued.
5. The present application has been made to quash the proceedings on various grounds. One of the grounds pleaded is that guardianship proceedings are pending In the Family Court.
6. I have heard the learned counsel for the parties and the State and I am of the view that the prosecution is not maintainable for the-simple reason that the applicant is the father of the minors and, therefore, the natural guardian and, the detention of the minor children by him does of amount to any offence. In order to meet this it was urged by the earned counsel for the woman that the children had already been entrusted to the guardianship of the mother in 1967. Of course that is so but thereafter the parties lived together and it was only in October 1970, that the allegation was made that she was turned out and the children were detained. At the time of the alleged previous incident in 1967 there were two minor children but at the time of compromise one of them had died and two more children were born thereafter.
7. It was further urged by the learned counsel for the woman that in the complaint an allegation wits also made that on 1st October 1970, she was beaten and wrongfully confined and, therefore, criminal offence was all the same committed. I have gone through the complaint and of course that allegation is made but the complaint had been filed by the woman not in respect of that incident. She made the complaint in respect of the children. In this connection it may also be noted that although that incident was said to have taken place on 1st October 1970, but no complaint of that incident was at all made. The present complaint which was made is dated 30th December 1970, i.e. Nearly after three months.