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Jayshree Pravin Bhadane vs Pravin Vishram Bhadane And Others on 5 July, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.438/2017

Jayshree Pravin Bhadane
Age 35 years, Occu-household
R/o C/o S.M.Bagul, 15,
Z.P.Colony, Deopur,Dhule .. PETITIONER
Versus

1]Pravin Vishram Bhadane
Age 46 years, Occ-Business

2]Ku. Himani Pravin Bhadane
age 12 years, Occ-education.

3]Ku.Mayuri Pravin Bhadane
age 09 years, Occu – education.

R.2 and R.3 are minor
u/g R-1. Father
Respondent No.1 and 3 R/o 6B,
Gandhi Nagar, Dhule Road
Nandurbar Taluka District
Nandurbar.

4]The State of Maharashtra.

[Copy to respondent No.4 be
served through the Asst.Public
Prosecutor, Bombay High Court
bench at Aurangabad]. RESPONDENTS
—–
Mr.P.S.Paranjape, Advocate for Petitioner
Mr.K.C.Sant h/f R.S.Wani, Advocate for Respondents no.1 to 3.
Mr.A.R.Kale,APP for Respondent No.4 State.

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—–

CORAM : MANGESH S. PATIL,J.

DATE : 05/07/2018

ORAL JUDGMENT :

Rule. Rule is made returnable forthwith. With the consent
of both sides, the matter is heard finally at the stage of
admission.

2] This is a typical instance regarding plight of minor
daughters when their parents are busy in resorting to the
provisions of Section 97 of the Code of Criminal Procedure
claiming their custody, rather than resorting to the suitable and
appropriate remedy provided under the Guardian and Wards
Act.

3] The facts leading to the filing of this Writ Petition may be
summarised as under :

The petitioner and her husband-respondent no.1 got
separated. The girls were apparently in the custody of the
petitioner. He therefore filed a proceeding under Section 97 of
the Code of Criminal Procedure before the learned Judicial
Magistrate, First Class, bearing Criminal Application
No.141/2016. The learned Judicial Magistrate rejected the
application by order dated 10/5/2016. Faced with the situation

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he preferred Criminal Revision Application No.9/2016 but even
that was dismissed.

According to the petitioner, while the girls were still in her
custody, by deceit the respondent no.1 kidnapped them when
they had gone to school. Again, the petitioner resorted to the
same remedy and filed an application under Section 97 of the
Code of Criminal Procedure in the Court of Judicial Magistrate,
First Class. Obviously, the application was rejected by the
learned Magistrate holding that the powers under Section 97 of
the Cr.P.C. cannot be invoked to claim custody of the minor
daughters who were in the custody of their natural guardian and
father-the respondent no.1. The petitioner then challenged that
order in Criminal Revision No.85/2016 which was rejected by
the learned Additional Sessions Judge by order dated
3/11/2016. Hence this Writ Petition.

4] The learned advocate for the petitioner vehemently
submits that though the respondent no.1 is the natural guardian
being the father of the daughters, he has not obtained their
custody by resorting to any legal remedy. Rather having failed to
secure any order, he has resorted to deceit and has literally
kidnapped the daughters and has confined them to his house.
His such conduct is sufficient enough to be described as unlawful
confinement and the petitioner has rightly resorted to Section 97
of the Cr.P.C. According to the advocate, the learned Magistrate
as well as the learned Additional Sessions Judge has overlooked

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such a backdrop in which the girls were taken away by the
respondent no.1 and the fact situation certainly warranted a
direction under Section 97 of the Cr.P.C.

5] The learned advocate for respondent no.1 strongly opposes
the application. He submits that since the respondent no.1 is the
father and natural guardian of the girls, his custody cannot be
termed as a confinement for the girls or can even be said to be a
wrongful restraint. He would further point out that the girls
themselves have written to the Police disclosing that they were
willingly staying with their father. In any event, the remedy of
Section 97 of the Cr.P.C. to claim custody of the minor daughters
is not available. If at all the petitioner wants custody of the girls
she should have resorted to appropriate proceedings under the
Guardian and Wards Act. Therefore, irrespective of the fact
situation being pointed out by the petitioner and the allegations
being levelled by her about he having taken away daughters by
resorting to deceit, no fault can be found with the orders passed
by the two Courts below in refusing to invoke the powers of
Section 97 of the Cr.P.C.

6] Without going into factual aspects as regards the
circumstances in which the custody of the daughters changed the
hands, which is out of the purview of the writ jurisdiction being
a pure question of fact, it is sufficient to remember that the
remedy of Section 97 of the Cr.P.C. is absolutely not capable of
being invoked in the peculiar facts and circumstances of the

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matter.

7] There is no dispute about the fact that the respondent no.1
is the father of the daughters. He himself had also resorted to the
same remedy under Section 97 of the Cr.P.C. to claim custody
but had failed to do so for the right reasons. It seems that
without taking any clue from it, the petitioner has also resorted
to the same recourse by resorting to Section 97 of the Cr.P.C.
when the girls are in the natural custody of their father. Suffice
for the purpose to refer to the catena of cases, referred to by the
learned advocate for respondents 1 to 3 in the cases of Ramesh
V/s. Laxmi Bai (Smt.) (1998) 9 SCC 266, Pramod V. Kamble
V/s Jyoti P. Kamble and Anr; 2012 (5) AIR Bom R 878, and
Altaf S/o Karimbhai Shaikh V/s Rizwana W/o Altaf Shaikh
and another; 2007 (1) B.Cr.C.138, specifically laying down
that in such a situation the remedy of Section 97 of the Cr.P.C. is
not available and the parents have to avail the remedy in Civil
law to claim the custody.

8] Perusal of the impugned orders would clearly show that
the learned Magistrate as well as the learned Additional Sessions
Judge were alive to the law and have rightly refused to invoke
that provision to budge to the request of the petitioner.

9] True it is that the welfare of the children should be the
paramount consideration. However, whether in a fact situation
the custody of the daughters should be with either the petitioner

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or the respondent no.1 can only be ascertained in an appropriate
proceeding at an appropriate stage. There being nothing on the
record to examine that aspect of the matter, it would be apposite
for the petitioner to invoke suitable remedy.

10] The Petition does not hold any merit and is liable to be
dismissed.

11] The Writ Petition is dismissed.

12] The Rule is discharged.

(MANGESH S. PATIL,J.)
umg/

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