056-NLR-NLR-V-75-P.-SIRISENA-and-2-others-Appellants-and-SUB-INSPECTOR-OF-POLICE-C.-B.-I.-For.pdf
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Sirisena v. Sub-Inspector of Police
1970Present: Samerawiekrame, J.P. SIRISENA and 2 others, Appellants, and SUB-INSPECTOR OFPOLICE (C. B. I., Fort, Colombo), RespondentS. C. G32-434/6S—M. C. Panadura, 1594Criminal law—Offence of kidnapping a girl from lawful guardianship—Proof ofimproper purpose—Immateriality of minor's consent.
On 23rd June 1960 the 1st accused-appellant went through a marriageceremony with a minor after causing her to be removed by his sisters (2nd and3rd appellants) from the custody of her mother who was told by them falselythat the minor was being taken for a birthday party. The minor left willingly 1
1 Mohatnado o. Ibrahim (1895) 2 N. L. B. 36.
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with the 2nd and 3rd appellants and there was no compulsion used.on her.After the marriage ceremony was over, the minor returned home at 1.00 p.m.the same day. On 27th May 1066 the 1st appellant had given notice of intentionof marriage stating that the minor’s age was twenty-one years and giving afalse address.
Held, that the appellants were liable to be convicted of kidnapping the minorfrom the lawful guardianship of her mother. The taking of a minor for thepurpose of contracting a marriage, upon a false pretence that she was a major,without’the knowledge of her parents, was taking her away for an improperpurpose. It was immaterial that the minor consented or went willingly, for aminor cannot validly consent to the substitution of some other person's controlfor the control which is exercised over her by her lawful guardian.
A.PPEAL from a judgment of the Magistrate’s Court, Panadura.
R. Dias Bandaranaike, for the accused-appellants.
Priyantha Pe.re.ra, Crown Counsel, for the Attorney-General.
Cur. adv. wit.
January 13, 1970. Samerawickrame, J.—
The first, second and third appellants have been convicted ofkidnapping M. Trixie Charlotte Fernando, a minor, from the lawfulguardianship of her mother. The second and third appellants aresisters of the first appellant and they were neighbours of the minor andher mother. On. 27th May 1966, the first appellant had given noticeof intention of marriage to the minor stating that her age was twenty-oneyears and giving a false address. On 23rd June 1966, the 2nd accused-appellant came to the house of the minor and asked the mother to permither to take her daughter to a birthday party at Dehiwela. The motherhad shown reluctance stating that her husband was not at home. The2nd accused-appellant, accompanied by the 3rd accused-appellant,came there again and pressed the mother to permit the minor to gowith. them. She had then permitted them to take the minor to thebirthday party on condition • that she returns immediately after theparty was over. • The 2nd and 3rd accused-appellants had taken theminor to the Y. M. B A. where she was married to the first accused-appellant. Thereafter, the lBt accused-appellant had taken her to astudio where they posed for a photograph. The minor had returnedhome at 1.00 p.m. the same day. Later, the mother discovered thather daughter had been married.
It would appear that the minor left willingly with the 2nd and 3rdappellants and that there was no compulsion. exercised on her. Inthe case of Nattiah v. Herat,1 Gratiaen, J., held that the taking of a minortemporarily away from a guardian without any intention of deprivingher of the unrestricted freedom to return to the guardian’s protectionwhenever she chose to do so did not amount to the offence of kidnappingbut he added that if she is taken away for an improper purpose the
1 (1951) 54 N. L. R. 473.
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8AMERAWICKRAME, J.—Sirisena v. Sub-Inspector of Police
offence of kidnapping would be committed. It appears to me thatthe taking of a minor for the purpose of contracting a marriage, upon afalse pretence that she was a major, without the knowledge of her parents,was taking her away for an improper purpose.
It is true that the first appellant was not present when the minoractually left the house of her mother with the 2nd and 3rd appellantsbut it appears to me that he was materially instrumental in causingher to leave the custody of her mother along with the 2nd and3rd appellants and come to him as it is obvious that she did so becauseof his promise or at least his agreement to marry her. This clearlyappears from the fact that he had already given notice of marriage.In The Queen v. Shaik Adam,1 the facts were as follows :—At the invitationof a girl under the age of sixteen years living with her parents,the defendant agreed to elope with her. The girl met the defendant byappointment not far from her father’s house, which she had left (withthe intention of not returning) on the pretence of going to school, andthe defendant took her to his own house. Clarence, J., held that theoffence of kidnapping had been committed. He stated, “ In the presentcase, a Eurasian girl under sixteen, apparently but imperfectly educated,sends a message to an Asiatic Mohammedan a few years olderthan herself, inviting him to elope with her ; and he does so.In my opinion his act in doing so amounted to an offence withinthe purview of this enactment, and to rule otherwise would be todeprive the enactment of a large part of the effect it was designed toexercise in protecting females of tender age, not merely from force orfraud, but from results of their own immature judgment and unreasoningimpulses. ” As it appears to be clear that the 1st appellant had arrangedwith the minor upon a promise or agreement to marry to leave her motherand come with his two sisters to him, it does not seem to me materialthat he was not present at the time she actually left the guardian. Itmight have been different if he only came on the scene after the minorhad left with his sisters without taking any part in causing her to leaveher mother’s custody. Clarence, J., referred to this aspect of the matterand stated, “ It is true that in the present case the girl had left her father’shouse with the intention of not returning, when the defendant joinedher and escorted her away, but her so leaving her father’s house appearsto have been the result of pre-arrangement with defendant, which makesall the difference. ” It is immaterial that the minor consented or wentwillingly for a minor cannot validly consent to the substitution of someother person’s control for the control which is exercised over her by herlawful guardian.
I affirm the finding of guilt against the appellants. The learnedmagistrate has, without proceeding to conviction, bound over the 3rdaccused-appellant under s. 325 of the Criminal Procedure Code. Herappeal is accordingly dismissed.
1 (1888) 8 S. C, 0. 181.
Ceylon Workers Congress v. Anglo-Ceylon and Qeneral
Estate Co., Ltd.
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The learned magistrate has sentenced the 1st and 2nd accused-appellants each to one year’s rigorous imprisonment. While it iscorrect that any consent or even forwardness on the part of a minorwill not prevent the offence of kidnapping from being committed, thoyare matters which are not entirely irrelevant in regard to the question ofsentence. I alter the sentence passed on the first accused-appellantto one of three (3) months’ rigorous imprisonment.
The 2nd accused-appellant was apparently a tool in the hands of the1st appellant. I accordingly set aside the sentence of imprisonmentpassed on her and order that on the day she appears for sentence inthe Magistrate’s Court, she be detained until the rising of Court andalso pay a fine of Rupees one hundred and fifty (Rs. 150/-). In defaultof payment of fine she will undergo six weeks’ rigorous imprisonment.
Subject to the variation of the sentences in respect of the 1st and2nd accused-appellants, their appeals are dismissed.
Appeals dismissed.
Sentences in respect of 1st and 2nd appellants varied.