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Whether Magistrate can order to give custody of child to mother U/S 97 of CRPC?

In the High Court of Gauhati
(Before Rumi Kumari Phukan, J.)

Sanjeev Kumar Singh
O. Mema Devi
Crl. Pet. 626/2019
Decided on July 16, 2019
Citation: 2019 SCC OnLine Gau 2874

The Judgment of the Court was delivered by Rumi Kumari Phukan, J.:—
Heard Mr. AM Bora, learned counsel for the petitioner and Mr. AU Ahmed, learned counsel for the respondent.

2. The petitioner herein entered into marriage with the respondent 07.03.2014 and after two years of the marriage a child was born to the parties on 02.04.2016 but after the birth of the child the respondent wife develop serious physical ailment like paralysis and convulsion for which she has undertaken various treatment at various places. She was under treatment at Valley hospital, Silchar and thereafter she was shifted to GNRC, Guwahati where there was operation for her gynological as well as neurological problem and thereafter she continued her treatment through physiotherapist in her in-laws house but her problem persisted for which she had to take help of her servant to look after the child and in the meantime, she also continued her job as lecturer in the college. Thereafter, in the year 2017 she went for treatment at Apollo hospital, Chennai. On 10.10.2017 she went to her paternal house by keeping the child in the custody of her husband but in the meantime, as she could not recovered from her physical discomfort she decided to stay in her parental house and did not want to go to her husband’s house endangering her life, so she requested her husband to bring the child so that she can see the child. Accordingly, on 25.01.2019, while she was at Valley hospital, Silchar her husband took the child to the hospital for two hours and thereafter he returned. On the very next day i.e on 26.01.2019 she went to the house of the husband to bring back her child along with O/C Sadar thana, Silchar but she was not allowed to see the child for which she filed a petition before the Deputy Commissioner, Cachar, Silchar with the aforesaid contention that she being a mother has the right to take the child from her father as she is suffering from tension for not having the child with her. In her petition, she has stated that as per Section 6 of Hindu Minority Guardianship Act, she is the natural guardian of the child and so she should be given the custody of the child. The said petition was filed on 28.01.2019 under Section 97 of the Cr.P.C The said petition was forwarded to the Additional District Magistrate, Cachar, Silchar to dispose of the matter and accordingly the learned Additional District Magistrate drew up a proceeding under Section 97 of Cr.P.C and registered a case bearing No. 52M/2019 and issued search warrant to search the house of the present petitioner for recovery of the child of the parties. The petitioner herein also filed his written statement before the court for which the court took up the matter for hearing and finally on 26.02.2019 passed order as follows:


“26.02.2019: 1st party submitted that the 2.9 years old baby girl named Sanabi was under her care for 1 year since her birth and after that she had to keep her child frequently at the case of 2nd party due to her ill health and frequently admission to Hospital.

After hearing both parties, it is concluded that both parties who are legally married to each other stay separately from each other over some family dispute and the question which arises now is regarding custody of the baby girl who was born out of the wedlock between both the parties and as such there is no question of wrongful confinement by 2nd party.

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Both sides had agreed to the fact that the baby girl named Sanabi is only 2.9 years old, therefore she requires regular care of her mother.
The allegation that the 1st party i.e Smt. O. Memo Devi is physically and mentally unfit to take care of their child is ruled out considering the fact that she is working woman, and is the HOD of computer Science at GC College which is also admitted by 2nd party.

Therefore, self after hearing both sides is of the opinion that the Zimma of the baby girl named Sanabi, D/O of both Smti O. Mema Devi and Sanjeeb Kumar Singh, should be handed over to her mother i.e, the 1st party of the instant proceedings, till any order of any other competent court. The 2nd party Sri. Sanjeev Kumar Singh is hereby directed to hand over the Zimma of Smti Sanabi to Smt. O Mema Devi. O/C Silchar PS to take necessary steps to implement the order and report compliance on or before 12.03.2019
Inform all concerned.”

3. This revision was preferred by the petitioner against the impugned order before the Court of Session Judge, Cachar, Silchar and the learned revisional court upheld the order with the following observation:

“10. After consideration of the submission of both the parties including the contention of the revision petition and the impugned order it is found that the minor girl Sanabi is under the custody of 2nd party and his family members and the 1st party/OP is not allowed custody of her minor girl on the pretext that she is physically and mentally unfit to take care of her. From the impugned order it reveals that the 1st party/OP is a working woman and HOD of Computer Science in GC college and as such the contention that the OP is physically and mentally unfit was ruled out and the learned ADM has directed the 2nd party/revisionist to hand over the zimma of the minor Sanabi to her mother the 1st party/OP.

11. A minor girl aged about three years cannot be kept in a place against the will of her mother even if she is kept by her father the revisionist and his family and the same amounts to wrongful confinement and as such I am of the opinion that use of Section 97 Cr.P.C cannot be termed as illegal and without jurisdiction.”

4. Challenging the order of the learned trial court as well as the revisional court, the present petition has been preferred under Section 482 read with Section 401 Cr.P.C for quashing the order passed by both the forums.

5. The learned counsel for the petitioner, Mr. Bora has basically challenged the order of the court on the ground that there cannot be a question of confinement on the part of the father of the child as has been alleged by the respondent/wife and the learned trial court as well as the revisioinal court has erred in law in deciding the matter in proper perspective of law and facts. Regarding the contention raised in the petition under Section 97 of Cr.P.C It has been pointed out that there is hardly any averment in the petition which may amount to confinement of child on the part of the petitioner. It is contended that the respondent/wife, who was critically suffering from various ailment after the birth of the child is staying in her parental house. For such complication, she herself kept the child in the custody of the father/petitioner and accordingly the child was in the custody of the petitioner and for the reason that the respondent/wife has not seen the child for a long time cannot be termed as confinement on the part of the petitioner.

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6. The learned counsel for the respondent however tried to justify the order of the court on the grounds that she has stated about certain misbehaviour and torture on the part of her in-laws apart from her husband while staying in her matrimonial home and then under the compelling circumstances she has to reside in her parental house and the child was taken by the husband without allowing the mother to take care of the child. It is fairly admitted by the learned counsel for the respondent that although the question of confinement in respect of the child by a father may not come but the mother being the natural guardian has the right to take the child in her custody and denial of visiting right of the child on her demand may amount to confinement.

7. Learned counsel for both the parties has relied upon the decision of the Hon’ble Supreme Court in Anjali Anil Rangari v. Anil Kripasagar Rangari reported in (1997) 10 SCC 342 wherein the Hon’ble Apex court in similar situation has held that provision of Section 97 could not come into play while there cannot be wrongful confinement on the part of the guardian/parents, even though the parties are at liberty to file appropriate proceeding under Section 25 of the Guardian and Wards Act 1890 for keeping custody of the child.

8. Now whether the proceeding under Section 97 that has been drawn by the learned Additional District Magistrate, Cachar is maintainable and resultantly the order passed by the court by giving zimma of the custody of the child to the respondent/wife is sustainable in the eye of law? The Section 97 Cr.P.C provides as follows:
“Section 97 in The Code of Criminal Procedure, 1973
97. Search for persons wrongfully confined. If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.”

9. The crux of the matter lies for invocation of special provision of 97 as to whether the child of the parties has been wrongfully confined by the petitioner so as to initiate the proceeding under Section 97 of the Code. To get the answer, the petition filed by the petitioner/respondent herein would be relevant. After going through the said petition filed by the respondent/wife it would go to show that she herself has categorically admitted all about her health condition that due to such continuous health problem she has to undergo different treatment at different hospitals at Silchar, Guwahati and Chennai and ultimately she returned to her parental house by keeping her child at her husband’s house and thereafter she decided that she would not return back to her matrimonial home which may endanger her life and while staying at her parental house she requested her husband to bring the child to the hospital so that she can see the child. Her petition itself reveals that since 2017 to 2019 she was staying in her parental house she nowhere complained about any such confinement on the part of the petitioner/her husband. On 25.01.2019, on her request, present petitioner took the child to the hospital so that she can see the child and it is peculiar to note that on the very next date i.e on 26.01.2019 she went to bring back the child along with police and may be because of her attitude she was not allowed to take the child.

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10. Now the question arose whether in the circumstances will it speak about wrongful confinement of child on the part of the petitioner? The answer will be “No”. The person who carried the child to the hospital to fulfil the wish of her wife on 25.01.2019 and while the child was wilfully left by the respondent/wife in the custody of the petitioner because of her ill health since 2017, such a contention raised by the respondent can in no way be stated as a confinement. The learned Additional District Magistrate although initially had issued search warrant treating the same to be wrongful confinement by its order dated 28.01.2019 but in the order dated 26.02.2019 as indicated above in paragraph 2 of the order has itself held that there can be no question of “wrongful confinement by the second party” but strangely the learned court treated the matter as if dealing with the custody of the child and gave the custody of the child to the respondent/wife which is beyond the jurisdiction of Section 97 of Cr.P.C The provision of custody of child can be decided under Section 25 of the Guardian and Wards Act and the same cannot be adjudicated in the petition under Section 97 of the code. The only question which is to be decided while passing any such order by a court that there was certain wrongful confinement of a person while initiating proceeding. As has been discussed above, no matter of wrongful confinement has been made out as against the petitioner, who is the natural guardian/father of the child.

11. The Section 6 of the Hindu Minority and Guardianship Act provides that the natural guardian of any minor is the father and after him the mother.

12. As a corollary of above discussion it can be found that the impugned order dated 26.02.2019 passed by the learned trial court is wholly without jurisdiction. On the other hand, the order of the revisional court is also bad in law while the court has observed that any minor girl cannot be kept in a place against her will and will amounts to wrongful confinement. However, if the parties file a case for custody of the child, then the question of taking opinion of the child will arise as to with whom preferred to live, whether in the custody of her father or mother and that provision is not applicable in a proceeding under Section 97 of Cr.P.C

13. From what has been discussed above and in the circumstance narrated in the petition and the reply of the present petitioner before the court below it emerges that the child of the parties was kept in the custody of the petitioner by his wife voluntarily for her health problem and the same cannot be now contended as wrongful confinement and both the orders of the trial court as well as revisional court is devoid of merit and liable to be interfered. Accordingly, the orders passed by the trial court as well as revisional court is hereby quashed and set aside. It is however, observed that the parties may prefer appropriate application before the appropriate forum for custody of the child in proper manner, if so advised and till then, it is expected that the petitioner will honour the sentiment of the mother/respondent to facilitate her visit to her child as per convenience of the parties.

14. Accordingly, the petitioner stands disposed of.

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