Shahnaz Begum vs Mohd. Rafiq & Anr. on 17 November, 2017

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

Petition u/s 491 Cr.P.C. No. 02/2017

Date of decision:-17.11.2017
Shahnaz Begum Vs. Mohd. Rafiq Anr.
Coram:
Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge

Appearing counsel:
For Appellant/Petitioner(s) : Mr. V. B. Gupta, Advocate.
For respondent (s) : Mr. L. K. Moza, AAG.

i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No

1. Through the medium of present petition, petitioner seeks invoking the
jurisdiction of this Court under Section 491 of the Criminal Procedure
Code and order for production of Master Sarfraz Minor, S/o Sh. Mohd.
Shabir and Mtr. Shahnaz Begum, aged 4 years in the Court, having been
illegally and improperly detained and kept in the custody of respondents
1-2 in their house, situated at Village Malhar, Tehsil Lohai Malhar,
District Kathua, and restoring the custody of the minor to the petitioner
who is the real mother of the minor.

2. The case of the petitioner is that the petitioner had hardly stepped at the
threshold of 18th year of her age and she was given in marriage to one
Shabir, S/o Mohd. Rafiq of Village Malhar in District Kathua. The
marriage came to be solemnized as per Muslim Law on 14th of June, 2011
and petitioner was taken to the house of her husband Shabir. That after a
short span of time thereafter the marriage the husband of the petitioner
and respondents 1-2 who are the father-in-law and mother-in-law of the
petitioner started showing their real colors, started taunting, teasing,

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manhandling, torturing the petitioner and started pressurizing the
petitioner to ask her parents to give more dowry articles and cash and
jewelry to these greedy people. It is further stated that in the meanwhile
the petitioner became pregnant and gave birth to a male child in the year
2013 and all the expenses of the delivery were borne by the parents of the
people. That the petitioner bore all the atrocities and cruelties of the
respondents because of her minor son Sarfraz so that his childhood is not
spoiled.

3. It is further stated that when the petitioner was in advance stage of her
pregnancy, the husband of the petitioner Mohd. Shabir left his home,
without keeping any address or particulars and now at least for the last
one and half hear he is quite unheard of and has never returned back till
date. That taking undue advantage of the pregnancy and other
deteriorating health conditions of the petitioner and above all the long and
continuous absence of the husband of the petitioner and his not sending
any contributing even a penny in the family, the respondents No. 1-2
became very barbaric with the petitioner as well as her children and
keeping them starving. That the husband of the petitioner Shabir is
continuously missing. The respondents no. 1 and 2 in the advanced stage
of her pregnancy on 9th May, 2017 hounded out the petitioner and her
minor son and a minor daughter from her matrimonial home and left the
petitioner with no other option but to go to her parental home in Village
Talla, Tehsil Billawar alongwith her children.

4. The petitioner also filed a complaint against respondents in Police
Station, but since the respondents are very influential persons therefore
Police did not take any action against respondents no. 1 and 2. It is further
stated that ultimately the petitioner on 12.05.2017 made an application in
the Court of learned Judicial Magistrate Billawar who under Section
156(3) Cr.P.C. referred the same to the Police for verification of
allegations. Suffice to it say that nothing tangible and substantial came

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out of that which whereas on one hand aggravated the agony and worry
of the petitioner on the other hand also encouraged the respondents to
excel their illegalities and cruelties towards the petitioner and her
children. That the respondents No. 1 and 2 on 20.07.2017 at about 10 AM
with criminal intentions came at the parental house of the petitioner at
Village Tilla when the parents of the petitioner had gone out on their
land. The respondents No. 1 and 2 dragged the minor Sarfraz, who was
sleeping by the side of the petitioner on bed and forcibly took him with
them, saying that they will return the minor after some time, as they want
to pass some time with their minor grandson. That when even after the
passing of 4/5 hours, the respondents did not come back nor returned the
minor to the petitioner, the petitioner and her parents started finding out
their whereabouts in Village Tilla as well as in Billawar Town and late in
the evening came to know that the respondents No. 1 and 2 have taken
the wailing and crying minor with them to the home in Village Malhar. It
is further stated that the petitioner as well as her parents with the aid of
some family friends started asking and persuading the respondents No. 1
and 2 to return the minor to the petitioner, who being the mother of the
minor is his natural guardian and during the life time and in the presence
of the petitioner they have no right or authority to keep the minor with
them, which is not at all in the interest or welfare of the minor, but the
respondents avoided the request of the petitioner and her parents on one
or the other pretext.

5. It is submitted that in the meanwhile reports started pouring in from the
reliable sources that the minor is ill as well as is not comfortable with the
respondents and often remains weeping and crying and refused to even
take milk and the behavior of the respondents is very inhumane and cruel
to the minor, who give him a thrashing and maltreat him when he cries or
urinates in the bed. It is further stated that on legal advice the petitioner
filed an application under Section 100 of Cr.P.C in the Court of learned

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JMIC, Billawar on 22.08.2017 praying for a Search Warrant for the
recovery of the minor. The Court below did not issue the warrant, but
issued the notice to be served through Police Malhar. That the minor
came to be produced in the Court on 04.09.2017 by the respondent No. 2,
but the Magistrate below illegally landed back the minor to respondent
No. 2 on the plea that the minor was weeping and crying. A minor of 4
years age that too separated from her mother for the last about 1½ months
having lived scared and traumatized by the respondents and being a
village boy having come in the city for the first time, in such situation his
weeping and cries should not have been taken so seriously and his
custody should be given to respondent No. 2.

6. It is further stated that in view of arbitrary procedure adopted by the
learned court below, seeking objections from other side and granting
adjournments, and saying that the scope of section 100 of Cr.P.C. is very
limited, the petitioner could not afford to resort to such prolonged
procedure and action as the same in no case would have been in the
interest of and in the welfare of the minor. That as per the latest
information the minor is not being treated well by the respondents, who
are old people unable to take care of even themselves. That the
respondent No. 2 in the morning goes with the cattle and the respondent
No. 1 also early in the morning goes to cut the grass, fodder and also the
crop as the harvesting season has started and throughout the day the
minor is kept in a locked room and there is no body in the family to take
care of him, provide him nourishment and milk and through the day the
minor remains crying and weeping and muddled in urine and latrine as
there is none to take care of all this, this all affected/is badly affecting the
health, hygiene, psyche and over all development of the minor Sarfraz
who has become very weak and is ailing, besides the home atmosphere
and surroundings the house of the respondents is so obnoxious and
unbearable, thus an alarming threat to the human life, particular the life of

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the minor child. That the petitioner on 22.09.2017 has got the petition
under Section 100 Cr.P.C. dismissed for the reason that in that petition,
no prompt and instant relief was expected to be granted which would
have been proved detrimental and dangerous to the life, limb and psyche
of the minor.

7. I have considered the arguments and law on the subject. Counsel for
petitioner has cited 1987 KLJ 108 case titled Shoba Rani v Safaid
Singh ors., and Delhi High Court judgment passed on 19.2.1982 in
case titled Smt. Nandita Virmani v. Raman Virmani (Criminal Writ No.
82/1982).

8. Section 491 Cr.P.C. reads as under:-

491. Power to issue directions of the nature of a habeas corpus.

(1) The High Court may, whenever it thinks fit, direct-

(a) That a person within the limits of its appellate criminal jurisdiction be
brought up before the Court to be dealt with according to law;

(b) that a person illegally or improperly detained in public or private custody
within such limits be set at liberty;

(c)that a prisoner detained in any jail situate/within such limits be brought
before the Court to be there examined as a witness in any matter pending or to
be inquired into in such Court;

(d) that a prisoner detained as aforesaid be brought before a Court-martial or
any Commission *[x x x] for trial or to be examined touching any matter pending
before such Court martial or Commissioners respectively;

(e) that a prisoner within such, limits be removed from one custody to another
for the purpose of trial; and

(f) that the body of defendant within such limits be brought in on the Sheriffs
return of cepi-corpus to a Writ of attachment.

(2) The High Court may, from time to time, frame rules to regulate the
procedure in cases under this Section.

9. Bare perusal of this section, it is evident that court has power to issue
direction of Habeas corpus only in cases which has been mentioned in
above sections. The writ that secured the liberty of person was called
Habeas Corpus. It is a writ in the nature of an order calling upon the
person who has detained a person to produce the later before the Court in
order to let the Court know on what ground he has been confined and to
set him free if there is no legal justification for imprisonment.

491 Cr.P.C.No. 02/2017 Page 5 of 6

10. In the present case, as is evident from the interim order dated 11.10.2017,
the child was produced before Court by police. The order reads as under:-
“Heard.

Mr. Varinder Sharma, Head Constable of Police Station, Malhar produced the
respondents and the child, namely, Master Sarfraz before this Court. The
petitioner on being asked by the court and given sufficient time was unable to
persuade the child to come to her, much less to go with her.
This matter having been taken up at pre-lunch session, the Registrar Judicial of
this Wing, who is a Senior and seasoned Judicial Officer of District Judge’s
Level, was requested to take the parties to his room and ascertain as to whether
the child was desirous to go with his mother. The Registrar Judicial reported in
the post-lunch session that he could not see the possibility of the child leaving the
company of his grandparents and going to his mother at this stage.
In the aforementioned scenario, no order can be passed in this proceedings in
regard to shifting the custody of the child from the grandparents (respondents)
to the mother (petitioner), as sought by the learned counsel for the petitioner.”

11. The court has, thus, already exercised its jurisdiction. Now, petitioner
again wants to direct the police to produce the child in police custody.
Although grand-parents are not legal guardian, but it is for the welfare of
child, who is minor, not to direct the police again to produce them before
Court. Because, it will give wrong impression in the mind of the child,
who is minor. The proceeding u/s 491 Cr.P.C. are summary in nature; it
cannot be a shortcut to reliefs, which are available to petitioner, under any
other law like Guardian and Wards Act.

12. Hence this petition is, thus, dismissed.

(Sanjay Kumar Gupta)
Judge

Jammu
17.11.2017
Pawan

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