- (1.) This revisional application under section 401 read with section 482 of the Criminal Procedure Code (hereinafter called the Code) has been filed by the petitioner assailing the order dated 31.5.05 passed by the learned Sub- Divisional Judicial Magistrate (in short SDJM), Murshidabad, Berhampore in G. R. Case No. 321/04 rejecting prayer of the petitioner for releasing her from the Silayan Home on her own bond.
(2.) Learned Advocate for the petitioner submitted that O.P. No.2 Mantu Fakir is the de facto complainant and on the basis of First Information Report (FIR) lodged by him the Nawda P.S. Case No. 23 dated 13.9.04 under section 363/366/120B of the Indian Penal Code (in short IPC) was started. The petitioner married according to her own wishes against the consent of her father. The petitioner married one Mirjamal Sk. @ Mintu Sk. according to her own wishes after attaining puberty. In view of section 251 of the Mahomedan Law a Muslim woman who attains puberty can marry according to her own wishes without consent of her parents. After marriage the petitioner became pregnant and on the basis of FIR during investigation she was recovered and kept in home. She gave birth to a son who is now hardly three months old and the said baby is seriously ill. After production in Court she went to her father's custody but her father forcibly confined her and her baby child. She'somehow managed to escape from custody of her father and filed an application for recovery of her baby. After recovery of her baby, the said baby was given to her custody. She is now lodged in the home and she filed an application for releasing her on her own bond, but the learned Magistrate by the impugned order rejected her prayer.
(3.) He further submitted that the petitioner is the victim of the case and is the main witness. After her marriage her husband is her guardian and her father cannot forcibly confine her either into his custody or in Home. As she married according to her own choice in accordance with Mahomedan Law she is entitled to be released. The order of the learned Magistrate being not in accordance with law is liable to be set aside. In support of his contention he cited a decision in Md.Idris vs. State of Bihar, reported in 1980 Cr. LJ 764.;