Andhra HC (Pre-Telangana)
Syed Siddiq Ahmed,S/O. Syed Sayeed, ... vs The State Of A.P.,Rep.By Its Pubic ... on 16 November, 2012
Author: K.G. Shankar
Bench: K.G. Shankar
HON'BLE SRI JUSTICE K.G. SHANKAR Crl. Petition No.8106 of 2010 16.11.2012 Syed Siddiq Ahmed,S/o. Syed Sayeed, r/o.H.No.8-2-50,Azam Road, Behind Head Post Office,Nizamabad. The State of A.P.,rep.by its Pubic Prosecutor,High Court Buildings, Hyderabad, Through Nizamabad Town-II P.S., and another Counsel for the Petitioner: M. Subba Reddy Counsel for the Respondents: Addl. Public Prosecutor for R-1 Smt. D. Sangeetha Reddy for R-2 <Gist: >Head Note: ?Cases referred: 1.1992 Crl. L.J. 2231 2.1998 SCC (Crl.) 999 3.ALL MR. (Crl.) 450 4.1998 Crl.L.J. NOC 98 (Kerala) ORDER:
The reversing of the order of the learned I Additional Judicial First Class Magistrate, Nizamabad in Crl.M.P.No.2372 of 2009, dated 22.12.2009, through orders in Crl. Revision Petition No.5 of 2010, dated 20.07.2010 by the II Additional Sessions Judge [Fast Tract Court (FTC)], Nizamabad is assailed by the respondent before the learned Additional Judicial First Class Magistrate.
2. The petitioner was the respondent in Crl.M.P.No.2372 of 2009 and Crl. Revision Petition No.5 of 2010. His wife is the petitioner in Crl.M.P.No.2372 of 2009 as well as in the Crl. Revision Petition No.5 of 2010.
3. The wife and the husband are estranged spouses. They have two sons in Syyed Arsalan and Syyed Amaan. The children were staying with their mother. It is the case of the wife that on 14.06.2009, the husband allegedly visited the house of the parents of the wife and took away the elder child-Arsalan, who was playing in front of the house. Alleging that the same was tantamount to illegal confinement, the wife filed a petition under Section 97 of the Criminal Procedure Code (Cr.P.C., for short) to issue a search warrant for the production of the minor Syyed Arsalan before the Court. The learned I Additional Judicial First Class Magistrate, Nizamabad held that the Court was not entitled to go into the disputed question as to who among the wife and the husband is entitled to the custody of the minor child.
So holding, the learned I Additional Judicial First Class Magistrate, Nizamabad dismissed Crl.M.P.No.2372 of 2009. The wife assailed the same before the II Additional Sessions Judge (FTC), Nizamabad, through Crl. Revision Petition No.5 of 2010. The learned Sessions Judge set aside the finding of the learned I Additional Judicial First Class Magistrate, Nizamabad and directed the husband to hand over the custody of the minor child to the wife within one month from the date of the order. Questioning the same, the husband preferred the present revision.
4. Section 97 Cr.P.C. reads:
"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."
5. The learned Sessions Judge relied upon series of decisions and considered that Section 97 Cr.P.C. is analogous to the Writ of Habeas Corpus. He considered that expediency required to pass orders regarding the custody of the child. Accordingly, he directed that the child would be delivered to the mother.
6. In Duryodhan Mahanta v. Sarsawati Mahanta1, a Magistrate issued search warrant for the production of a child who was below five years. The petition was laid by the mother of the child.
The child was recovered from the custody of the father of the child. The learned Magistrate went further and passed orders directing the custody of the child with the mother till the child attained majority. The Orissa High Court observed that the Magistrate had no jurisdiction to pass such an order u/s.97 Cr.P.C.
7. In Ramesh v. Laxmi Bai2, it was observed that the very Section 97 Cr.P.C. is not attracted for issuing search warrant for the recovery of the child when the child is lived with its father. When admittedly the minor child has been in the custody of the husband herein perhaps the wife cannot force the delivery of the child to her.
8. The additional factor in this case is that the minor child who is the subject matter already crossed eight years of age. Sri M. Subba Reddy, learned counsel for the husband pointed out that under Mohammad Law, the mother would be entitled to custody till the child crossed seven years only and that the father would take priority to the custody of the child thereafter. He submitted that, as the child is over eight years old, the mother cannot seek the custody of the child. He also contended that the child is interested to stay with the husband rather than the wife.
9. The learned counsel for the petitioner also pointed out that the marriage between the wife of the husband already stood dissolved, that the wife married a Unani Doctor and that the wife had in fact handed over the custody of the other child to her relatives, so much so, there is no justification for the wife to insist upon the custody of the minor child in the present case.
10. Sri G. Vijaya Saradhi, learned counsel for the second respondent-wife, on the other hand, contended inter alia that when the Court directed the delivery of the child to the wife, it would be just and proper to insist upon complying with the orders of the Court. He further pointed out that Section 97 Cr.P.C. envisages that "the Court shall make such order as in the circumstances of the case seems proper" and that the powers of the Court are wide enough for the Court to order the custody of the minor child with the mother rather than the father.
He also submitted that similar orders are passed many a time in Habeas Corpus cases and that the order by the revisional Court is perfectly justified.
11. The minor child-Syyed Arsalan was admittedly born on 21.12.2003. He is about 8 1/2 years old as on today. I consider that it would be justified to hear the views of the minor child before appropriate action is taken. In Chandan Anandrao Rangari v. State of Maharashtra 20043, the Court placed reliance upon K. Pareekutty v. Ayyikkal Ayissakutty4 and held inter alia that the wishes of the child for removing it from the custody of the lawful guardian was absolutely an irrelevant consideration. When the child is not a baby but is 8 1/2 years old, it may not be prudent to order the custody of the child either with its father or with its mother disregarding the wishes of the child. Such an order may not be pragmatic since such order may affect the very psyche of the child. It, therefore, is imperative to consider the views of the child, albeit the view of the child per se is not only guiding factor in awarding custody. Consequently, the child was directed to be produced for personal examination by me to examine the reflections of the child.
12. On 08.11.2012 the child was produced by the petitioner-father. I have examined the child in my chambers. The child claimed that he has been staying with his father. Curiously, the child also stated that he did not have mother. He stated that he did not know who the second respondent was.
13. As rightly observed by the learned counsel for the second respondent, obviously, the child gets tutored when the child has been in the custody of the father. At the same time, when the child is over eight years old and not only claims that the petitioner is his father but pleads ignorance regarding relationship with the second respondent, I am afraid that this is not a case where the custody of the child can be ordered in favour of the second respondent-mother. This is a fit case where status quo deserves to be maintained.
14. In that view of the matter, the impugned order in Crl. Revision Petition No.5 of 2010 on the file of the learned II Additional Sessions Judge (FTC), Nizamabad deserves to be set aside. The impugned order, accordingly, is set aside. This Crl. Petition is allowed. While it is established that the minor child has been in the custody of the petitioner-father, it is ordered that the custody of the child shall remain with the petitioner-father unless appropriate orders are passed otherwise in an appropriate petition before the proper forum.
_________________ K.G.SHANKAR, J.
Date: 16.11.2012