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Smt. Lily Manna-vs-State Of West Bengal And Anr. on 26 September, 2007

Calcutta High Court Smt. Lily Manna-vs-State Of West Bengal And Anr. on 26 September, 2007
Equivalent citations:2008 CriLJ 625
Author: P S Datta
Bench: P S Datta

JUDGMENT

Partha Sakha Datta, J.

1. This revisional application dated 14-6-2007 under Section 401 read with Section 482, Cr.P.C. has been filed to challenge an order dated 16-5-2007 passed by the learned Sub-Divisional Magistrate, Tamluk in case No. M.P. 937/05 whereby the learned Magistrate directed one Aninda Manna, husband of opposite party No. 2 herein to produce his son, Subham Manna before him. Aninda Manna against whom the learned Sub-Divisional Magistrate passed the impugned order was married to Smt. Papiya Manna, the opposite party No. 2 herein and a male child Subham Manna was born of the wedlock. Aninda Manna is in the Indian army. Papiya Manna, the wife of Aninda Manna filed a petition before the learned Sub-Divisional Magistrate, Tamluk under Section 97 of the Cr.P.C. alleging that her minor child of 9 years of age had been taken away by her mother-in-law Smt. Lily Manna who was the opposite party before the learned Magistrate and the petitioner herein in the revisional application. Lily Manna told the learned Magistrate that the child had been taken away by its father, Aninda Manna and the statement of Lily Manna was supported by the report of the Lieutenant Colonel A.K. Verma dated 24-4-2007. The learned Magistrate recorded that the mother of the child was completely in dark about the whereabouts of the child, and directed, upon hearing the parties and examining the documents Aninda Manna, husband of Papiya Manna, the petitioner before the learned Magistrate to produce his son, Subham Manna before him. Thus, the petition before the learned Magistrate was filed by the daughter-in-law against mother-in-law.

2. Being aggrieved against the order dated 16-5-2007 passed by the learned Magistrate, the mother-in-law has preferred this revisional application on the ground that the order of the learned Magistrate was not supported by provision of the Cr.P.C, that the learned Magistrate directed the employer of the son of the petitioner herein to take steps for production of the child before the Court, that the learned Magistrate should have dismissed the application filed by her daughter-in-law, Papiya Manna as the child is in the custody of the father. It has been contended in the revisional application that the petitioner’s daughter-in-law, Papiya Manna got herself separated in mess and did not give company to the child and it was seen that the grand mother used to look after the child. It was alleged by Lily Manna that her daughter-in-law filed the application under Section 97 of Cr.P.C. before the learned Sub-Divisional Magistrate, Tamluk being misguided by the local people. The petitioner filed a revisional application being AST No. 2148 of 2005 under Section 401 of Cr.P.C. before this Court and also filed a petition before the learned Magistrate for dismissal of the petition of Papiya Manna under Section 97 of Cr.P.C. and it was contended that the child was being provided with education by the father. The petitioner also filed another revisional application being No. CRR 3967/05 and that revisional application as also the earlier revisional application being No. CRR 521/06 were taken up by his Lordship Hon’ble Justice S.K. Gupta who was pleased to dispose of both the applications and set aside the order dated 26-12-2005 passed by the learned Magistrate issuing search warrant and the order of the Hon’ble Court was communicated to the learned Magistrate. The fact of the child being in the custody of the father was communicated to the learned Magistrate by filing an affidavit sworn before the learned C.J.M. at Tamluk and the learned Magistrate, in the circumstances, should have dropped the proceeding. There is no ingredient to unfold a case against the father of the child concerning any commission of any offence and accordingly, the order of the learned Magistrate dated 16-5-2007 directed Aninda Manna to produce the child may be set aside.

3. This Court granted a stay for a limited period against the order impugned. During the pendency of this revisional application. Papiya Manna filed another application praying for vacating the interim order dated 15-6-2007 passed by this Court alleging that she was driven out by her mother-in-law on 16-11-2005 after snatching away the child and she had lodged a case against her husband and others under Sections 498A/406 of IPC and that the learned Magistrate was justified in drawing up a proceeding under Section 97 of the Cr. P.C.

4. I have heard Mr. Biplab Mitra, learned Advocate for the petitioner and Mr. Milon Mukherjee, learned Advocate for the opposite party No. 2.

5. Earlier two revisional applications being CRR No. 521/06 and CRR No. 3967/ 05 filed by the mother-in-law, Lily Manna against the daughter-in-law Papiya Manna, husband of Aninda Manna over the selfsame matter were heard by his Lordship Hon’ble Justice S.K. Gupta. It was contended before his Lordship by Smt. Lily Manna that the learned Magistrate issued search warrant under Section 97 of Cr.P.C. on the basis of the police report but no opportunity was given to the petitioner by way of serving notice upon her and his Lordship disposed of the two revisional applications by directing the learned Magistrate to fix a date within seven days from the date of communication of the order to him, for hearing the matter in presence of both the parties and for disposal of the petition under Section 97 of Cr.P.C. by a reasoned order.

6. It appears that after disposal of the aforesaid two revisional applications by Hon’ble Justice S.K. Gupta on 18-1-2007, the learned Sub-Divisional Magistrate, famluk heard both the parties, namely, Papiya Manna the wife of Aninda Manna and: Lily Manna, the mother of Aninda Manna and passed the order directing for production of the child before him. Before the learned Magistrate, Lily Manna claimed that the child had been with his father who filed an affidavit claiming that the child has been with him at his present place of posting which was supported by the report of the Lieutenant Colonel A.K. Verma. Papiya Manna alleged before the learned Magistrate that Lily Manna, the rriother-in-law has hidden her minor child and her claim was supported from the report of the O/C, Kolaghat and B.D.O., Kolaghat dated 8-3-2007. Learned Magistrate observed that the mother of the child is in complete darkness about the whereabouts of the child. In the revisional application, it has been stated by Smt. Lily Manna that the child has been prosecuting his status at the place of posting of his father in Rajasthan. The age of the child is said to be 9 year old.

In the circumstances, the question, that comes up for consideration, is whether the learned Magistrate was legally justified in issuing search warrant and directing Aninda Manna for production of the child.

7. Section 97 of Cr.P.C. dealing with issuance of search warrant provides that search warrant may be issued against a person for recovery of a person who is confined, under such circumstances, which amounts to an offence. The question, therefore, is whether a child in the custody of the father can be said to be in wrongful confinement and whether such wrongful confinement would amount to an offence or not.

8. In the vacating application the mother of the child Smt. Papiya Manna alleged that on 16-11-2005 she was driven out of her matrimonial home and the child was taken away and in such circumstances, she made’ the application before the learned Magistrate under Section 97 of Cr.P.C. The learned Magistrate conducted an enquiry through the O/C, Kolaghat P.S. who reported in support of Lily Manna. It has further been contended in the application praying for vacating the interim order that the child was with the father only from February, 2007 while the application was filed way back on 21-11-2005 alleging that her mother-in-law, Lily Manna had taken away the child for her own selfish reason. The learned Magistrate was justified in passing the impugned order so as to ascertain the fact whether or not the well being of the child who is in remote place in Rajasthan would be properly looked after by the father and the child was taken away by the father only after this Court directed the learned Magistrate to hear both the parties and pass a reasoned order. The mother-in-law, Lily Manna cannot be entrusted with the child by the father, Aninda Manna depriving the mother of the custody of the minor child who was only 6 years old at the time of making the application. Aninda Manna cannot be allowed to frustrate her application under Section 97 of the Cr.P.C. by taking the child to his place of work for alleged better education who shall have very little time to see the need of the child and a child of 9 years old was hardly able to take care of himself.

9. The application under Section 97 of the Cr.P.C. was filed by the mother of the child against her mother-in-law some time in the year 2005 when allegedly the child was taken away by the mother-in-law and during the pendency of the application, the child is reported to have been taken by the father to his place of work at Rajasthan and the child is said to be prosecuting his status (sic) there. As against the custody of the child, the scenario has changed during the pendency of the proceeding. Section 6 of the Hindu Minority and Guardianship Act, 1956 provides that the natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property is in the case of a body-the father, and after him, the mother provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. By dint of judicial pronouncement in Githa Hariharan v. Reserve Bank of India , it has been held that in the phrase “the father and after him, the mother” the word ‘after’ need not necessarily mean the lifetime of father. In the context in which it appears in Section 6(a) it means ‘in the absence of, the word ‘absence’ referring to the father’s absence from the care of minor’s property or person for any reason whatsoever. If the father is wholly indifferent to the matters of the minor or if by virtue of mutual understanding between the parents, the mother is put exclusively in charge of the minor or if the father is physically unable to take care of minor for any reason whatsoever, the father can be considered to be absent and the mother can validly act on behalf of the minor. It is true that the controlling consideration governing the custody of the children is the welfare of the children and not the right of the parents. But the question is whether it is competent for the learned Executive Magistrate to consider welfare of a child while considering an application under Section 97 of the Cr.P.C. Had the child been in the custody with the present petitioner who is the grand mother of the child then the position would have been a different one. The father of the child swore an affidavit before the learned Magistrate on 17-4-2007 that for better, care and education of his children, they were kept with his mother (Lily Manna) but subsequently his daughter was taken away by his wife and so in the month of February, 2007, he took the child with him and he has been residing with him at his posting and he has enough facilities to bring up his son with education and other facilities and is willing to keep him with him for his betterment and protection. This affidavit was placed before the learned Magistrate who was of the opinion that the mother was in the dark about the child. Now in the circumstances, when the child, who is admittedly 9 years old, can be said to be in wrongful confinement by his father who, in terms of Section 6(1), is the natural guardian in respect of minor’s person as well as property. The sine qua non of application of Section 97 of Cr.P.C. is that there has to be prima facie finding that the person has been in wrongful confinement and that wrongful confinement must amount to an offence. Legally speaking, when father being a natural guardian of the son keeps the son with him and the son has far exceeded the age of 5 years, it cannot be said that the son has been wrongfully confined by the father or that such confinement would amount to an offence. It is a case where the son has been in custody of the father who is a natural guardian and Executive Magistrate cannot act as a civil Court and decide as to in whose custody the child should be placed for welfare and betterment of the child. That is the function entrusted by the law in the civil Court and it is always open to the mother to approach appropriate forum to redress her grievance. Furthermore, the learned Magistrate while passing the order issuing search warrant did not come to any opinion whether the child has been wrongfully confined in the custody of the father.

10 In the decision in Ramesh v. Smt Laxmi Bai 1999 Cri LJ 5023 when a 9 year old son was living with his father, a natural guardian, the application under Section 97 of Cr.P.C. by the mother was held to be not maintainable by their Lordships of the Supreme Court holding that Section 97 of the Cr.P.C. is not attracted to the facts of the case when the child who was of 9 years old was living with his father. This decision is quite appropriate to our case.

11. In the circumstances, the revisional application is allowed and the order of the learned Sub-Divisional Executive Magistrate, Tamluk dated 16-5-2007 is set aside.

12. The vacating application, accordingly, stands disposed of.

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