Gujarat High Court
Vinodbhai Dhudabhai Bhagora vs Kadiben D/O Kanabhai on 10 April, 2013
Author: R.D.Kothari
Bench: R.D.Kothari
VINODBHAI DHUDABHAI BHAGORA....Applicant(s)V/SKADIBEN D/O KANABHAI SAKABHAI KALASVA R/SCR.A/1430/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 1430 of 2008 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE R.D.KOTHARI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ VINODBHAI DHUDABHAI BHAGORA....Applicant(s) Versus KADIBEN D/O KANABHAI SAKABHAI KALASVA & 1....Respondent(s) ================================================================ Appearance: MR MITESH L RANGRAS, ADVOCATE for the Applicant(s) No. 1 MR JV JAPEE, ADVOCATE for the Respondent(s) No. 1 MR NJ SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI Date : 10/04/2013 ORAL JUDGMENT
The present petition is filed against the order dated 9.7.2008 passed by the learned Additional Sessions Judge, Modasa, in Criminal Revision Application No. 122/2006, whereby the learned Additional Sessions Jude was pleased to affirm the order dated 18.10.2006 passed by the learned learned 2nd J.M.F.C., Modasa, below Exh.1 in Criminal Misc. Application No. 268/2006. The later Court had passed an order to hand over custody of child Dilip to his mother i.e. respondent No.1 herein. It may be stated that before the learned J.M.F.C., the mother was applicant and the father, who is petitioner herein, was opponent.
2. It appears that the marriage between the parties had taken place in June, 1997. It is the say of the respondent No.1-wife that after some time of their marriage, the petitioner-husband started harassing her mentally as well physically. It is the say of the wife that on 7.2.2006, she was driven out from her in-laws house. It appears from the application of the wife that their minor child Dilip was separated from her on the day when she was driven out from the petitioner s house. Later on, the wife filed present complaint in the Court of learned J.M.F.C., Modasa on 22.6.2006. The wife had prayed for issuance of Search Warrant as provided under Section 97 of the Code of Criminal Procedure.
3. The learned J.M.F.C, Modasa in para-4 of his order has mentioned that the date of birth of the child is 11.6.2000 and presently the child is studying in 2nd standard. After mentioning these facts, it is observed by the learned Magistrate that considering the age of the child, it can be said that the grooming and growth of the child would be more better under the guardianship of the mother than under the guardianship of the father. Holding so, the trial Court had allowed the application.
4. The Sessions Court, Modasa, affirming the order of the trial Court, has held that from the material on record, it is revealed/disclosed that the respondent-wife is driven out from the house of the petitioner by causing harassment to her. Relying on the injury certificate produced by the wife, the learned Sessions Judge was pleased to affirm the order of the learned J.M.F.C. Heard learned advocate Mr. Mitesh L. Rangras for the petitioner, Mr. J.V.Japee fo the respondent No.1 and learned A.P.P. Mr. N.J.Shah for the State.
This Court had granted interim relief vide order dated 13.4.2009.
7. During the course of arguments, the learned advocate for the petitioner drew the attention of the Court to a decision in the case of Ramesh v. Laxmi Bai (Smt.), 1998(9) SCC 266 and Duryodhan Mahanta v. Saraswati Mahanta, 1992 Cri.L.J. 2231. Placing reliance on these two case laws, it was submitted by learned advocate for the petitioner that Section 97 Cr.P.C cannot be invoked against natural guardian.
8. Learned advocates for the respondents have opposed the submissions made by the learned advocate for the petitioner.
In Ramesh Laxmi Bai (Smt.) s case (supra), the Hon ble Apex Court in Para-4 of the judgment has held as under:-
4. From a perusal of the impugned order of the High Court, it appears to us that though the points which should weigh with a court while determining the question of grant of custody of a minor child have been correctly detailed, the opinion of the High Court that the revisional court could have passed an order of custody in a petition seeking search warrants under Section 97 CrPC in the established facts of the case is untenable. Section 97 CrPC prima facie is not attracted to the facts and circumstances of the case when the child was living with his own father. Under the circumstances, we are of the opinion that the orders of the High Court dated 17-7-1996 and that of the learned Additional Sessions Judge dated 9-7-1996 cannot be sustained and we accordingly set aside the orders and the directions given therein.
9.1 In Duryodhan Mahanta s case (supra), A Pasayat, J. (as he then was) has held in para-4 thus :
Provisions contained in S.97 of the Code are emergent in nature. A Magistrate is authorized to issue a search warrant if he has reason to believe or on the truth of the allegation about the wrongful confinement of a person. The Magistrate cannot issue search warrant unless confinement amounts to offence. S.97 of the Code corresponds to S.100 of the old Code of 1898. This section contemplates only wrongful confinement. Wrongful confinement is defined in Ss. 339 and 340 IPC. Use of the expression reason to believe makes the legislative intention very clear that unless Magistrate has reason to believe that a person is confined in such circumstance that confinement itself amounts to an offence, issue of a search warrant under this section is without jurisdiction. Expression reason to believe implies belief arrived at judicially after application of judicial mind on consideration of available materials with sense of responsibility and effort of mind without ignoring as far as possible other side of controversy. When the child is in the custody of either father or mother, it becomes rather difficult to immediately come to a conclusion that confinement is illegal. A Magistrate taking action has to satisfy himself that there exist materials to induce his belief that the person is confined in such circumstances as to make the confinement amount to an offence. This is the requisite pre-condition before action can be taken. The allegations need not be absolute in precision. In the absence of material which prima facie shows that confinement amounts to as an offence, action u/s. 97 would be improper. This Court in (1989) 2 OCR 565 : (1990 Cr.LJ, 1085) Yudhistir Mohanand v. Dalimbe Mohanand, held that when a father takes his own child from the keeping of the mother, he does not thereby commit an offence, because he is the natural guardian of the minor, and the mother cannot have a permanent right of guardianship in preference to that of a father. A similar view was expressed by Madras High Court in 1981 Cri.LJ (NOC) 113, K. Sarasu v. Segodan, to which reference was made in Yudhistir s case (supra). However, Keral High Court held that when a Muslim father took away a child aged about 4 years from the custody of his wife by use of physical force, Magistrate had reason to believe that confinement amounted to a wrongful confinement. (See: 1978 Kerala Law Times 33, corresponding to 1978 Cri.LJ (NOC) 98, K.Pareekutty v. Ayyikkal Ayissakutty, where a mother took the custody of a child under 5 years, it was held that no offence was prima facie committed. See : Banarsi Lal v. Smt. Neelam, AIR 1969 Delhi 304 :
(1969 Cri.LJ 1370). When a natural father took away the child from the adoptive father, it was held that S.100 of the Old Code was inapplicable, as it was doubtful whether any offence had been committed. (See: Chagan Raj v. Hera Lal Doosai, AIR 1920 Cal.562 : (20 Cr.LJ 729). After the search is over and the person is found, then the concerned person is to be immediately brought to the Magistrate who has to make such order as circumstances warrant. The Magistrate before whom a person is produced by the Executive Officer, is to make such order as in the circumstances appears proper. Impugned order passed by learned JMFC, is in excess of his jurisdiction, because he did not consider the fact that the child was in custody of the father. Under S.6 of the Hindu Minority and Guardianship Act (in short the `Guardianship Act ), the mother is the guardian of a minor child who has not completed age of 5 years, and may have custody of minor. According to S.6, preferential guardian is natural father, except when minor has not completed age of 5 years, in which circumstances custody shall be that of mother. The use of the word `ordinarily used in S.6 reflects legislative intent to be that welfare of a child is to be kept in view and thereafter custody decided. Such question of welfare of child is to be decided by Civil Court in an appropriate proceeding as observed by Supreme Court in AIR 1987 SC 3, Mrs. Elizabeth v. Arvand. Paramount consideration is the welfare of the child. Therefore, learned JMFC was not justified to direct that child shall be in custody of mother, till he attains majority. Such a direction is not contemplated in terms of S.97 of the Code.
10. Thus, the ratio laid down in the above referred decision is that in an application for Search Warrant under Section 97 Cr.P.C., the Magistrate is required to satisfy himself that there exists material to hold the belief that confinement of a person in the circumstances can be said to be an offence. In other words, if such confinement is not an offence, then section 97 CR.P.C, would not be attracted. In order to attract Section 97, the Magistrate has to have reason to believe and secondly, such person should be placed in wrongful confinement . It is the wrongful confinement that elevates the confinement into an offence. Further, generally speaking, in case of natural guardian section 97 Cr.P.C., would not be attracted. Both the Courts below have not considered this aspect. The learned J.M.F.C after mentioning the facts has observed that grooming and growth of the child by the mother would be better compared to the grooming and growth of the child by the father. The Court has materially erred in indulging in generalisation. It appears that medical certificate produced by the respondent-wife has weighed with the learned Additional Sessions Judge. The learned Additional Sessions Judge, affirming the order of the learned J.M.F.C, has not assigned any reasons in his order, except relying on the medical certificate issued by the doctor wherein the doctor has certified that the wife has received simple injury because of beating. The reasons recorded by the learned Additional Sessions Judge are not relevant to the case of the petitioner.
The reasons for difficulty in applying section 97 in case wherein custody of child is with natural guardian are not far to seek. In case of natural guardian, confinement is less likely to be wrongful and unless such confinement is wrongful, Magistrate would not have jurisdiction to pass an order. So, except in cases wherein facts itself are of exceptional nature, special efforts ought to have been made by the applicant-petitioner in such case while claiming custody of child from natural guardian. In absence of making out such case by the applicant-respondent herein, application under section 97 must fail.
12. The learned advocate for the respondent-wife has pointed out that despite the orders of two Courts for handing over custody of the child to the wife, the petitioner has not obeyed the order. This grievance ought to have been raised by the wife upon service of notice to her of this Special Criminal Application. Such grievance cannot be raised at the time of final hearing of the matter.
13. For the foregoing reasons, this petition succeeds. The order passed by the learned Additional Sessions Judge, Modas, in Criminal Revision Application No. 122/2006, dated 9.7.2008 is hereby quashed and set aside. Rule is made absolute.
(R.D.KOTHARI, J.) Patel Page 13 of 13