Jammu & Kashmir High Court - Srinagar Bench
Ayat Nabi vs Ut Of J&K And Ors on 10 August, 2022
Author: Rahul Bharti
Bench: Rahul Bharti
1
Sr. No. 14
Regular list
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl.) no. 522/2022
Ayat Nabi ...Petitioner(s)
Through: Ms. Sabeena Naveed, Advocate
Vs.
UT of J&K and ors. ...Respondent(s)
Through: Ms. Insha Haroon, GA & Mr. Sajad Geelani, Advocate
CORAM:
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
10.08.2022
1. Heard Learned Counsel for the parties.
2. Through this writ petition a direction in the nature of habeas corpus is sought by the petitioner for the purposes of securing the production and physical custody of the person of her newborn child (son) from her husband who is the respondent no. 4 and who is the father of the child.
3. The situation which has led the petitioner to approach this court with a petition for habeas corpus direction is the refusal and rejection of her petition made on 01/07/2022 to the Chief Judicial Magistrate, Sopore under section 97 of the Code of Criminal Procedure, 1973 (in short Cr.P.C, 1973) for issuance of search warrant for 2 production of her child. The Chief Judicial Magistrate, Sopore, vide his order dated 13/07/2022, rejected her petition on the ground that as the child was unwell and being looked after by his father in terms of medical treatment from SKIMS Srinagar, so the custody of the child with the father was not amounting to an offence.
4. This writ petition was filed on 25/07/2022. The birth of child of the petitioner and the respondent no. 4 has taken place on 06/05/2022 which means that at the time of hearing and adjudication of this writ petition the child is still less than four months old and instead of being in the lap of the petitioner to receive breast feeding from her is in the arms of the respondents no. 4. The marital relationship of the petitioner and the respondent no. 4 is said to be in a state of spilt leaving the two residing in separation from each other. The petitioner is staying in her parental house in village Mundji while the respondent no. 4 is residing in his parental house in village Duroo. Thus, the petitioner felt herself separated from her newborn child from the very date of his birth in the hospital where she had undergone a cesarean for childbirth when the respondent no. 4 had taken the child for post birth urgent medical treatment of the child. The petitioner feels that by not restoring the physical custody of the child to her the respondent no. 4 and his family members are committing a wrongful act and which is not in the welfare of the child. 3
5. The petitioner and the respondent no. 4 solemnized marriage in year 2021 and the marriage is an arranged one. The petitioner and the respondent no. 4 come from a very humble rural background. The respondent no. 4 is a low scale govt. employee while the petitioner is a household woman having studied up to 12th Standard.
6. This court, while issuing notice to the respondent no. 4 in the case, vide an order dated 27/07/2022 also directed the S.H.O Police Station Bomai, Sopore, to secure the presence of the respondent no. 4 along with child before this court. Direction given vide order dated 27/07/2022 was reiterated in an order dated 01/08/2022 for S.H.O Police Station, Bomai, to carry out the compliance by the next date which was 09/08/2022.
7. Accordingly, the respondent no. 4, accompanied with his own mother carrying the child in her arms, and the learned counsel representing the respondent no. 4, had come present.
8. The petitioner along with her counsel was also present.
9. Before ordering the respondent no. 4 to hand over the custody of the child to the petitioner, this Court had deemed it fit to first examine and interview both the petitioner and the respondent no. 4 and also their respective counsel by holding the proceedings in the court chambers so as to relieve the petitioner and the respondent 4 no. 4 from the stress of open court proceedings.
10. This Court, upon examination and interview of the petitioner and the respondent no. 4, found them to be of sound mind and good disposition bearing no personal grudge against each other and that is a good sign for their prospective marital rapprochement. This Court came to be apprised by the respondent no. 4 that the child is in regular need of medical checkup at SKIMS, Srinagar for which the respondent no. 4 has been taking the child for advised medical treatment.
11. The respondent no. 4, in a very candid manner, volunteered the surrender of the custody of child in favor of the petitioner acknowledging the fact that the child's first natural need and demand is mother's milk to be fed only by the petitioner. The only reservation registered by the respondent no. 4 is that the medical treatment and care of the child shall not be compromised by the petitioner and also that the respondent no. 4 shall be allowed to have regular access to the child during the custody with the petitioner.
12. In the face of this situation so matured, this court has granted and entrusted the custody of the child to the petitioner, and for that the respondent no. 4 has handed over the child to the petitioner in whose lap the child was found by this court enjoying the restful nap. 5
13. The grant of physical custody of the child to the petitioner, after being taken from the respondent no. 4, is subject to following arrangement to be adhered to without any wilful breach/disobedience both by the petitioner and the respondent no. 4.
i. Since the present place of residence of the petitioner and the respondent no. 4 is their native parental village Mundji and Duroo respectively and both of which fall under the jurisdiction of the Police Station, Bomai, Sopore, and is easily approachable to both the petitioner and the respondent no. 4, so the meeting place of the petitioner and the respondent no. 4 for the purpose of affording visitation and access to the respondent no. 4 shall be the Police Station Bomai, Sopore in the presence of either S.H.O or in his absence the Incharge Police Station, Bomai, Sopore. The Police Station, Bomai has been readily accepted by both the parties to be their meeting place so as to ward off any acrimony in the event of providing for the visit of the respondent no. 4 to the parental house of the petitioner.
ii. The respondent no. 4 shall be entitled to visit and see the child twice a week that is Tuesday and Friday for a duration of two hours between 4 p.m. to 7 p.m. at the premises of the Police Station Bomai, Sopore. The petitioner shall bring the child along with her during the afore scheduled time and days so as to be in the company of the respondent no. 4, or in case both the petitioner and the respondent no. 4 can prefix time by communication on their mobile numbers then at 6 the time so mutually fixed. In case the respondent no. 4, on account of his pre-occupation, will not be able to make the visit on the given day/s, then he shall inform the petitioner beforehand so as to relieve her from making visit to the Police Station from the place of her parental residence. During the duration of their meeting at the Police Station, S.H.O concerned is hereby directed to ensure that the two are given very cordial time spending and shall also ensure that none of the parental side family members/ relations of both the parties are present there near them in the Police Station premises to disrupt the harmony of meeting and sitting of the petitioner, the respondent no.4 and the child.
iii. The SHO Police Station, Bomai, Sopore shall provide the facility of a meeting accommodation in the Police Station Premises for the given duration to the petitioner and the respondent no. 4 so that the two can also interact for the purpose of marital reconciliation.
iv. In addition to the twice a week meeting arrangement which shall last for one year from the date of passing of this judgment, whenever the child is required to be taken for prescribed or required medical checkup to the SKIMS Srinagar, then the petitioner shall accompany the respondent no. 4 upon joining him at the Police Station at given time as may come to be conveyed by the respondent no. 4. In no manner and on any pretext whatsoever, the petitioner shall avoid and miss the medical treatment and checkup of the child as may be arranged by the respondent no.
4. 7 v. For the purpose of taking care of routine needs of the child, the respondent no. 4 shall provide monthly maintenance amount of Rs. 3000/- w.e.f. ending August, 2022 to the petitioner who shall be entitled to use the said amount for needs and necessities of the child.
14. As the cause which constrained the petitioner to no other easy and available legal course of option and action other than in approaching this court with present writ petition was because of the refusal on the part of the Chief Judicial Magistrate (CJM in short), Sopore to activate the jurisdiction under section 97 of Cr.P.C 1973 meant for issuance of search warrant on the motion laid by the petitioner, so the learned Counsel for the petitioner has drawn the attention of this Court to the aspect that the judicial hesitancy on the part of the C.J.M, Sopore, was an outcome of a perception gatherable, and, in fact, gathered by the subordinate judicial magistrates vested with the jurisdiction under section 97 of Cr.P.C, 1973 from the series of the reported judgments on the matter from this High Court, as if, this court has held once for all that under section 97 of Cr.P.C 1973 there is no scope for issuance of search warrant for production of a child on the call and cause of mother against the father and for that the only remedy is the proceedings for guardianship.
15. This Court's attention has been drawn to a set of reported judgments of this Court wherein the order/s 8 issuing search warrant by the judicial magistrate/s acting under section 100 of the then in force J&K Cr.P.C, Svt. 1989 (equivalent to section 97 of Cr.P.C 1973), have been quashed and another set of the judgments wherein the issuance of search warrants for changeover of child custody have been upheld.
16. This Court is appropriating the present case as an opportune invitation to examine and iron out the wrinkles, in case if any, in the pronouncements made in the said reported judgments of this Court on the matter.
17. This Court in the case of Nazir Ahmad Bhat Vs Jawahira (2001 Cr.L.J 588 J&K) and Bashir Ahamd Mir Vs Rubeena Akhter (2011 SLJ 687) has validated the exercise of power under section 100 of J&K Cr.P.C whereas in cases Vinod Gandotra Vs Geeta Gandotra (1999 KLJ 326), Shamim Ahmad Vs Ashiya Begum (2016 (3) JKHC 128) and Devinder Lal Vs SHO Police Station Akhnoor & Ors (2018 (I) JKJ HC 410) the exercise was invalidated. This so seen spilt in the judgments of this High Court surely has a scope for the judicial magistrates, vested with exercise of jurisdiction under section 97 of Cr.P.C, 1973, to find themselves puzzled as to which line of judicial edict to pick.
18. But before adverting to the afore-cited judgments, a judgment of this Court which first commends itself to be 9 taken notice of is Atya Shamim Vs Dy. Commissioner, Collector (1999 AIR J&K 140), although the subject matter therein relates to habeas corpus direction for child production in a marital tussle between the parents, but the legal content and intent of the judgment concentrates upon the child's custody caught in pull and pressure of parental fight. Same remains the content even when a search warrant for production of child is sought by one of parents against other by resort to section 97 Cr.P.C. 1973. In this case, the facts were that the husband, a Pakistani national, had sought custody of his 13 years old daughter from his wife, an Indian national, by filing a writ of habeas corpus before this Court. The circumstances in which the husband and wife had come to lock horns for the custody of the daughter are referred to in the judgment to be read and appreciated. This Court delved into the historical aspect of origin of habeas corpus writ and also its application in the context of parental claim and counter claim qua the children. This Court had seen the case of habeas corpus writ from the angle of concept of detention and restraint of the person in custody and in para 26, 27, 28, 29, 30 and 31 which yearn to be reprinted for the sake of refreshing the understanding on the subject. Para 26 to 31 are reproduced herein next.
"26. The concept of detention and restraint may also be adverted to at this stage.
27. when it was alleged that a certain 10 woman was due to too much drink, in an unsound state of mind, that certain persons were having her too much under their control and influence and that they were suspected to making an improper use of their influence for their own ends, a rule was issued to show cause why an information should not be exhibited against them in the affidavits. A direction was added to the rule that certain named persons including a doctor and the relations of the alleged person of unsound mind should have access to her at the house of one of the defendants at all proper times to freely advise and be consulted by her, as it was represented that she was too infirm and weak to be brought into Court by Habeas Corpus R. Wright, (1760) 97 ER 730.
28. Thus a writ of habeas corpus is applicable as a remedy in all cases of wrongful deprivation of personal liberty. It is an effective means of immediate release from unlawful detention whether in prison or private custody. In this connection it may be noted that the actual physical confinement is not necessary to constitute detention. Control and custody are enough. Proceedings by way of habeas corpus can be adopted for obtaining custody of minors by their parents, legal guardians or others who are entitled to have such custody. This unlawful detention of a child from the person who is legally entitled to his custody is, for the purpose of the issue of the writ, regarded as equivalent to an unlawful imprisonment of the child, see Gohar's case. It is, therefore, unnecessary to 11 allege in applying for the writ that any restraint or force is being used towards the infant by the person in whose control and custody it is for the time being. In Wharton's Law Lexicon, 14th Edn. (1938) page 462, the following passage occurs:-
"Besides the efficacy of the writ of habeas corpus in liberating the subject from illegal confinement in public prison, it also extends its influence to remove every unlawful restraint of personal freedom in private life, availing for instance, to restore children to the lawful custody."
29. The words "Detention" and "Restraint" stands defined in Black's Law Dictionary, Sixth Edition at page 450 and 1314 and these are to same effect as noticed above.
30. The writ of habeas corpus is of a remedial nature (and not punitive) and not intended to be used for inflicting punishment on the person responsible for the illegal detention; therefore, where the illegal detention has ceased, the writ cannot issue. Where, however, it is doubtful whether the person charged with the unlawful detention has the custody or control, the court will order the writ to issue in order that the question may be ascertained on the return, Ex parte child, (1854) 139 ER 413.
31. It is thus well established that the writ of habeas corpus can be issued to secure the custody of minor. This can be sought even by a person who is not a citizen of this country. The objections raised by the respondent's 12 counsel are therefore, rejected..."
19. From the reading of the contents of the above laid excerpts, it is evidently discernable that the situation of freeing a person under custody by resort to remedy of habeas corpus is examinable by triangular reference. One from the perspective of the person under custody, second one from the perspective of the person in whose custody a person is and third angle from the perspective of the person who claims the custody of person from the one holding/having the custody.
In the first case scenario, the very confinement of the person may be ex-facie illegal/wrongful being kept and maintained against his will/volition and without sanction of law.
Second case scenario is that in the context of the person under confinement there may be a situation for him/her to perceive that there is nothing apparently wrong obtaining with respect to his/her confinement under a person having/keeping said custody but the person keeping custody of said person may not be one lawfully entitled to keep and carry on with the custody of the person by any claim of/in law and the confinement is by manipulation and machination.
Third case scenario is that the confinement of a person by someone may be objected to by a person who claims in law 13 to be the one to have the custody of the person to be freed from the clutches of the person holding the custody. In the second and third case scenario, the age, mind & health state of a person, socio-economic aspect of person under custody may also be contributory/attending facts to be examined.
Thus, a court posed with a situation to examine the liberty related case of an individual through the mode of writ of habeas corpus, proceedings under section 97 Cr.P.C, 1973 is not to be expected to go only by the optics of the event as if to answer a multiplication question of math but to examine the three-dimensional aspect of the case to come to hold if the physical liberty a person is under a seize/control/catch which is not lawful. The legal/jurisprudential principle that the State is ultimate guardian and guarantor of the life and liberty of its Subjects nurses the jurisdiction of habeas corpus and alike jurisdiction provided in section 97 of Cr.P.C 1973.
20. In the case of Nazir Ahmad Bhat vs. Jawahira , the fact situation of the case was that the breast-feeding mother of the child have made an application under Section 100 Cr. P. C before the Judicial Magistrate, Srinagar against her husband for the purpose of seeking custody of her child. The Magistrate below had come to 14 issue search warrants directing the SHO to produce the female child who was seven months old. The allegations made in the application by the mother was that the marital relation between her and father of the girl child were not good and her husband had taken the child forcibly and confined her under circumstances which make the confinement an offence. The father had approached this Court for seeking quashment of search warrant so issued. But this Court has refused to quash the search warrants issued.
21. In this case, this Court had taken notice of an earlier Judgment passed in the case "1999 KLJ 326 Vinod Gandotra and Ors vs. Geeta Gandotra" and explained why the mandate of such case was being deferred and not followed.
22. In the case of Bashir Ahmad Mir and Ors. vs. Rubeena Akhtar, the fact situation was that the mother of a three-year-old male child had approached Judicial Magistrate, Srinagar with an application under Section 100 Cr. P. C for search and protection of her child against the father. The Magistrate had issued the warrants which was challenged by father before this Court. By taking notice of the position of Muslim Law into consideration, recognizing the rights of mother for the custody of infant children, this Court had upheld the validity of the search warrant issued 15 by the Judicial Magistrate.
23. As against the two judgments, the cases in which this Court did not validate exercise of jurisdiction under section 100 of J&K Cr.P.C (equivalent being section 97 Cr.P.C) are Vinod Gandotra & Ors vs Geeta Gandotra reported in 1999 Kashmir Law Journal 326, Shamim Ahmed Vs Ashiya Begum reported in 2016 (3) JKJ (HC) 128 and Davinder Lal Vs SHO Police Station Akhnoor & Ors reported in 2018 (1) JKJ HC 411.
24. In Vinod Gandotra case, the custody of the person was that of six months old child (son) which the mother alleged has been kept away from her by her husband by force of circumstances in which the mother was meted with marital cruelty and forced out of matrimonial fold by her husband (child's father) and efforts of the mother to get back her son had met failure constraining her to approach the Chief Judicial Magistrate Jammu with an application under section 100 J&K Cr.P.C, who upon satisfaction, issued the search warrants for the production of the child who came to be handed over to the mother by the final order of the Chief Judicial Magistrate, Jammu. The search and production direction of the Chief Judicial Magistrate, Jammu came to be questioned under section 561-A J&K Cr.P.C before this Court and came to be allowed predominantly on factual ground that the mother of the child had resorted to not only suppression of facts but also 16 perversion of facts as there was already going on a matrimonial litigation for divorce between the mother and father of the child and in order to set up a counter to said divorce case the mother had resorted to make a story for seeking custody of child in which also she had come up with varied version. Thus, this Court had found out holes in the factual case of the mother to hold that mother's action was lacking bona fide. This Court did examine the provisions of section 100 J&K Cr.P.C to read that for issuance of search warrant under section 100 J&K Cr.P.C. the confinement must amount to wrongful confinement under section 339 and 340 Ranbir Penal Code (equivalent to Indian Penal Code). This court, despite finding the exercise of jurisdiction by the Chief Judicial Magistrate Jammu, in issuing the search warrant under section 100 Cr.P.C and consequent handing over the custody of child to the mother as case of exceeding the jurisdiction, still did not restore the child back to father and allowed the custody of the child to be with the mother given by the execution of search warrant.
25. In Shamim Ahmad case, this court was approached under section 561-A Cr.P.C by the father against search warrants issued under section 100 J&K Cr.P.C issued by the Judicial Magistrate, Bhaderwah, for production of two minor children (2 ½ and 1 year old) and hand over them to mother. This Court found the exercise of jurisdiction on 17 the part of the Judicial Magistrate invalid on the ground that there was no satisfaction registered by the Judicial Magistrate that the confinement of the two minor children was an offence. This Court, no doubt, has observed in this case that the custody of children with the father can never be treated to be an offence only because children happened to be minors.
This observation needs to be correctly appreciated in the perspective that just by reference to minority of child the custody of father can not be treated to be an offence but that does not mean that this Court intended to say and lay as last word in law with respect to section 100 J&K Cr.P.C ( 97 of Cr.P.C 1973 ) that in a case even if it is found out from the facts of a given case that the father has resorted to physical force/threats for getting and keeping the minor child under his control so as to deny the mother occasion and opportunity to have access as a maneuver in order to perpetuate marital cruelty upon his wife, as being mother of minor child/children even then also the mother cannot be given recourse to section 100 J&K Cr.P.C. In such like fact situation of a case, a father's control upon his minor child/children, particularly when the child/children are not in a position to have his/their mind matured enough to equip them to share their plight by their words of mouth, would be taken by law as envisaged under section 100 Cr.P.C not to be one legitimate in intent and purpose. 18 In this case this Court has drawn reference and reliance from a judgment of the Hon'ble Supreme Court of India in the case Ramesh Vs Laxmi Bai (1998 (9) SCC 266). In the Hon'ble Supreme Court's said judgment, singular line needs to be kept in perspective to appreciate the ratio of said judgment and that singular line is " Section 97, Criminal Procedure Code prima facie is not attracted to the facts and circumstances of the case when the child was living with his own father." Now words "living with his own father" are carrying the factual insight to the understanding of the Hon'ble Supreme Court of India in coming to the conclusion as arrived in said case. Surely in case of a breast feeding or for that matter even a child of four/five years of tender age does not live with any of his parents on his own will and volition and in fact may not even know what is about residing/living with any one of the parents to the exclusion of other. Expression "living" cannot go in the case of such a child whereas a minor who is in position to articulate his thinking and wish to let it be known by any enquirer that he is living with his mother or father without any mental/physical compulsion fastened upon him/her, then living of such a child with his father even if objected to by mother in her judgment to be against the child will not give her a situation to invoke section 97 of Cr.P.C 1973 by dispensing with guardianship jurisdiction.
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26. In case of Davinder Lal Vs SHO Police Station, the Judicial Magistrate, Akhnoor, had issued search warrant under section 100 J&K Cr.P.C for procurement of a son from the custody of father on the application of the mother. In this case also, this court appropriated an assumption that custody of a child with his father cannot amount to illegal confinement. This Court did not examine a scenario as to when a child is a breastfeeding one then can father's control over the person of said child by denying with an intent the custody of said child to the mother still be held to be lawful in the eyes of law as envisaged under section 100 J&K Cr.P.C., or the mother has to be asked to go for a guardianship proceeding which is to take its due time when every missing day of breastfeeding to a child will be only at the cost of risk to very life of said child. In this case, this court skipped its attention from the case of Nazir Ahmad Bhat vs. Jawahira mentioned supra.
27. Now in cases where the claim for exercise of jurisdiction under section 100 of J&K Cr.P.C, Svt. 1989 ( section 97 Cr.P.C. 1973) was invalidated, this Court did not mean an ironclad interpretation of section 100 of J&K Cr.P.C ( section 97 Cr.P.C) for the judicial magistrates that whenever there will be an applicant, be it as wife/husband, coming to seek search warrant for production of her/his child from the custodial confinement of her/his spouse that application has to be rejected by application of 20 readymade assumption that custody of a child with father/mother can not be wrongful, unwarranted and/or objectionable and that section 100 of J&K Cr.P.C (section 97 of Cr.P.C 1973) does not provide for such an application to be worth examining and deciding on merits of the situation. The textual reading and understanding of section 97 Cr.P.C leads to an impression and understanding that in the case of claim for search warrant for custody of a child by mother against father or even vice versa, custody of child either by mother/father has to amount to and constitute an offence of wrongful confinement/restraint and only then search warrant can be justified to be issued and not otherwise. On the other hand a contextual reading and understanding of section 97 Cr.P.C will bring out that the legislature has made use of each and every word in this section bearing in perspective full realization of the intendment of enacting Code of Criminal Procedure 1973 not only for offences centric procedural mechanism but also to deal with and provide for preventive and precautionary mechanism so as to keep the State's judicial branch vested with State's power to ensure safety and security of life and limb and also property of the subjects of the State. Thus, in section 97 of Cr.P.C 1973 the use and thrust of words "reasons to believe that any person is confined under such circumstances that the confinement amounts to an 21 offence" defines and carries the range and reach of law to ensure safety and security of a person in the context of his/her very physical liberty. Now in case the legislature had intended that a person only under wrongful confinement or wrongful restraint is to be restored to his/her liberty then the legislature would not have shied away from directly resorting to use and mention of sections 339/340 IPC in section 97 of Cr.P.C 1973 to generate issuance of search warrant as a matter of procedural compulsion to free a person being subject/sufferer of commission of offence under section 339/340 IPC. However, by consciously avoiding to relate the confinement mentioned in section 97 Cr.P.C, 1973 to constitute an offence be it under section 339/340 IPC, the legislature has loaded emphasis to the accompanying words "confined under such circumstances that the confinement amounts to an offence" knowing that such confinement may not per se be constituting commission of an offence because if it will be an offence per se then not only issuance of search warrant will have to take place but even a contemporary registration of FIR, filing of a criminal complaint for cognizance taking by same very criminal court before whom the application for issuance of search warrant has been asked for. Thus, the legislature actually intended to arm District Magistrate, Sub Divisional Magistrate and the Magistrate of Ist Class with reach and 22 approach of State's police and judicial power for ensuring that very physical liberty of a person is not being held captive by any other person under the circumstances which render the same as wrongful and illegal in intent and purpose. Thus, the use of words is "confinement amounts to an offence" and not the expression that "confinement is an offence" and that gives section 97 of Cr.P.C 1973 the throw of protective umbrella of law at very doorstep of administration of justice machinery at the district and sub district level under the Code of Criminal Procedure even if the confinement may not be an offence per se. In furtherance of this understanding of section 97 Cr.P.C, 1973 in a case where a father would resort to keeping a minor child, under pretence of his parental custody, but which is otherwise being a forced custody of child so as to deprive his wife, being mother of child, the custody and company of the child so as to actually inflict by that mode mental cruelty upon mother of child so as to perpetrate and perpetuate cruelty constituting an offence under section 498-A IPC , then can it be still held against a mother that even if she is suffering and bearing cruelty as defined under section 498-A IPC at the hands of her husband who has kept the minor child, who can be even a breast feeding child, under his forced custody and cover by fact of being father still she can not say that her child is under confinement under such circumstances that the 23 confinement amounts to an offence to warrant issuance of search warrant by the very nearest available magistrate having jurisdiction instead of going and filing a guardianship case before the District Court /Family Court which may be at a travelling distance from the place of abode and shelter of the mother suffering cruelty at the hands of her husband by using the child as a chattel .Thus, section 97 Cr.P.C has to have very realistic and practical application alive and alert to a fact situation as may be brought before a magistrate for magisterial examination and then to take a call to meet the contingency and exigency of the case keeping in perspective the actual welfare and well being of the child and the custody thereof.
28. Thus the legal maxim ex facto jus oritur is to be kept in guiding focus which means that law arises out of facts. Facts come first to bear full examination so as to be attended by the applicable law. A magistrate is, thus, to see, examine and appraise the circumstances of given case to come to a prudent conclusion that the child needs to be rescued even if the custody of father is seemingly normal incident but in actuality is a confinement which amounts to an offence under the circumstances of the case. Thus where a preferential custody of child in law is to be with mother but is not with her then upon examination of circumstances of the case the issuance of search warrant 24 can not be denied to a mother whose act of approaching the magistrate with an application for issuance of search warrant for securing preferential or otherwise also the custody of her child from the custody of father may be registration of her statement that the child's custody is under circumstances which render it confinement which amounts to an offence.
29. Thus, in the judgments supra in which this Court has invalidated the issuance of search warrant under section 100 J&K Cr.P.C. Svt. 1989 (section 97 Cr.P.C) those cases were facts specific without meaning an absolute statement of law on section 100 of J&K Cr.P.C ( now section 97 Cr.P.C 1973 ) that a search warrant is not admissible upon a plea of an aggrieved mother quo her minor child against the father .
Thus this petition is accordingly disposed of.
(RAHUL BHARTI) JUDGE SRINAGAR 10.08.2022 Yasmeen Whether the judgment is speaking : Yes/No Whether the judgment is reportable: Yes/No