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Wrongful confinement of Child u/s 97 dismissed against father

High Court of Judicature at Calcutta

CRR No. 728 of 2011.

Kajal Mukherjee

Vs

Anamika Mukherjee and Anr..

Counsel:
For Appellant: Mr. Ayan Bhattacharjee and Mr. Anjan Dutta, Advocates and
For Respondents: Mr. Debdut Mukherjee and Ms. Subarnarekha Misra, Advocates.
For State Mr. S.K. Mullick, Advocate

Judgment:

Kalidas Mukherjee, J.

1. This is an application under Section 482 of the Code of Criminal Procedure assailing the Order dated 4.1.2011 passed in criminal Revision No. 151 of 2010 by the learned Additional Sessions Judge, 4th Fast Track Court, Bichar Bhawan, Calcutta affirming the order dated 19.3.2010 passed by the learned Additional Chief Metropolitan Magistrate, Calcutta in Shyampukur PS Case No. 79 dated 20.3.2011 under Sections 498A/406/120B, IPC and allowing the prayer of the de facto complainant under Section 97 of the Code of Criminal Procedure for the recovery of the child from the custody of the petitioner/father.

2. Smt. Anamika Mukherjee filed a petition of complaint before the learned Additional Chief Metropolitan Magistrate, Calcutta under Sections 498A/406/120B and Section 4 of the Dowry Prohibition Act which was sent to the Shyampukur P.S. under Section 156(3), Code of Criminal Procedure.

3. Another application was filed by the complainant under Section 97 of the Code of Criminal Procedure wherein it has been alleged that the accused Nos. 1 to 3 conjointly entered into conspiracy and kept the sucking baby away from the petitioner and thus wrongfully confined the baby. It has been alleged that the baby was thus deprived of proper nourishment, care and affection. It has been stated in the petition under Section 97, Cr.P.C. that the baby is aged about 2 years 5 months.

4. The learned Magistratevide order dated 19.3.2010 was pleased to issue search warrant observing that such a baby was inseparable from his mother’s lap. The finding of the learned Magistrate was affirmed by the Learned Additional Sessions Judge, Fast Track 4th Court, Bichar Bhawan, Calcutta.

5. The learned Counsel appearing for the petitioner submits that the marriage took place on 16.1.2005 and the baby was born on 7.10.2007. It is submitted by the learned Counsel that on 28.4.2008 the wife left the matrimonial home leaving the 6 months old baby with the husband, and on 19.3.2010 the petition of complaint was filed under Section 156(3), Cr.P.C. within an application under Section 97, Cr.P.C.

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6. It is contended that under Section 97, Cr.P.C. no search warrant can be issued for the recovery of the child from the custody of the father, inasmuch as the father is a natural guardian under the law and custody of the child with the father cannot be said to be a wrongful confinement. It is contended that the learned Magistrate was not justified in issuing search warrant on the prayer of the mother for the recovery of the child from the custody of the father.

7. The learned Counsel for the petitioner has referred to and cited the decisions reported in Anjali Anil Rangari v. Anil Kripasagar Rangari & Ors., 1997 SCC (Cr.) 827, (Para 3/5), Ramesh v. Laxmi Bai (Smt)., 1998 SCC (Cr.) 999, (Para 4), Yudhistir Mohanand v. Dalimba Mohanand, 1990 Cr.LJ 1085 (Ori.), (Para 6/7), Parimal Kanti Pal v. State of W.B. & Ors., 2007 (3) AICLR 567 (Cal.), (para 11), Atanu Chakraborty v. State of W.B., 2010 (2) CHN (Cal.) 556, (Para 1/6/7), Zeenath K.V. v. Kadeeja, 2007 Cr.LJ 600 (Ker.), (Para 1/2/9-35), Akok Thadani v. Ramesh K. Advani, 1982 Cr.LJ 1446 (AP), (Para 10/11), Anjali Anil Rangari v. Anil Kripasagar Rangari & Ors., 1997 SCC (Cr.) 827, (para 4), Bidyut Biswas v. Kuheli Biswas & State, 2002 (2) CHN 450, (Para 5-9), Ramchandra Keshav Adke v. Govind Joti Chavare & Ors., AIR 1975 SC 915, (Para 25) and M/s. Mahaluxmi Rice Mills v. State of U.P., VII (1998) SLT 91=AIR 1999 SC 147 (Para 10).

8. The learned Counsel appearing on behalf of the OP No. 1, that is, the mother of the child, submits that according to the provisions contained in Hindu Minority and Guardianship Act, 1956 the child below five years of age will remain in the custody of the mother. It is contended that a matrimonial suit was instituted bearing MAT Suit No. 211/10 before the learned Judge, Family Court, Calcutta, whereinvide order No. 5 dated 21.2.2011 the petitioner herein being the husband gave consent in the matter of the child remaining in the custory of the mother.

9. It is contended that this fact has not been disclosed in the instant revisional application. The learned Counsel in this connection has referred to the application under Section 125, Cr. P.C. and the circumstances stated therein. The learned Counsel has also referred to the affidavit in opposition filed in this revisional application.

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10. Mr. Mullick appearing for the State submits that both the learned Courts below held that the child should remain in the custody of the mother, although father and mother being natural guardians, custody of the child remaining with either of them cannot be said to be a wrongful confinement. It is submitted that the welfare of the child should be the paramount consideration. It is submitted that the scope of interference in this application is very limited.

11. In the case of Anjali Anil Rangari v. Anil Kripasagar Rangari & Ors. (supra), the observation of the Hon’ble Apex Court in Paras 3 and 4 is quoted herein:

“3. The only question that needs to be considered in the context of the facts and circumstances of the present case is as to whether provisions of Section 97, Cr.P.C. could be invoked. It cannot be disputed that the mother is also a natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956. If it is so, could it be said that the custody of the two minor children with the mother was illegal and they were under her wrongful confinement? In the facts and circumstances of the case, we are unable to hold that the custody of the children with the mother was eigher unlawful or they were wrongfully confined by the mother at Delhi. If this be so the very basis of the impugned order cannot be sustained and consequently the impugned order is required to be set aside. We accordingly do so.”

“………………….Merely the fact that the child has in the meantime completed five years cannot be automatic ground in favour of the father for the custody of the child because, the paramount consideration before the competent Civil Court would be the welfare of the child.”

13. Admittedly, at the time of issuance of search warrant for the recovery of the child, the child was below five years of age. The allegation raised by the petitioner herein that when the baby was six months old the wife left the matrimonial home leaving the baby in the custody of the father has been disputed by the OP No. 1 herein.

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14. The learned Magistrate also observed that the baby of two years 5 months of age was inseparable from the mother’s lap and the learned Additional Sessions Judge, affirmed the findings of the learned Magistrate.

15. Another striking feature is that the petitioner herein gave consent in the proceeding before the learned Family Court in the MAT Suit No. 211/2010 regarding the custody of the child with the mother. This fact of giving consent by the petitioner herein regarding the custody of the child with the mother has not been disclosed in this revisional application. The order of the learned Judge, Family Court passed in Mat Suit No. 211/10 dated 21.2.2011 is quoted hereunder:

“…………… Perused the application and the w/o filed thereto. Heard the parties. It appears from the submission of the respondent/wife/O.P. that she is agreeable to show his minor son. Master Sattyakyee Mukherjee to the father/petitioner in the Court premises and the petitioner/ father also accepts the proposal of the mother/O.P. Accordingly, on consent of the parties, the interim application being I.A. No. 33/2010 is disposed of with a direction to the O.P./mother Smt. Anamika Mukherjee to produce their minor son, Master Sattyakyee Mukherjee at the Court premises for the purpose of visitation by the father/petitioner Shri Kajal Mukherjee on the dates of hearing of this suit without hampering his studies and other co-curricular activities if any………”

16. Having regard to the order passed by the learned Judge, Family Court where the petitioner herein gave consent in the matter of the custody of the child with the mother and having regard to the fact that at the time of issuance of the search warrant the baby was two years and five months old, I am not inclined to interfere with the findings recorded by the learned Magistrate which was affirmed by the learned Additional Sessions Judge. However, this finding, is confined to the proceeding under Section 97, Cr.P.C. and it will not in any way affect the proceedings pending before the learned Family Court or any other proceedings regarding custody of the child.

17. The revisional application bearing CRR No. 728 of 2011 stands dismissed.

18. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.

Revision Application dismissed.

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