Gujarat High Court
Irfan Abdul Khafi Sumra & vs Hamidaben Irfan Abdulkhafi Sumra & on 2 December, 2014
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/5195/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5195 of 2014
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IRFAN ABDUL KHAFI SUMRA & 1....Applicant(s)
Versus
HAMIDABEN IRFAN ABDULKHAFI SUMRA & 1....Respondent(s)
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Appearance:
MR PREMAL S RACHH, ADVOCATE for the Applicant(s) No. 1 - 2
MR LB DABHI, APP for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/12/2014
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the petitioners call in question the legality and validity of the order dated 18.11.2014 passed by the learned Additional Civil Judge & J.M.F.C., Khambhalia below Exh.1 in Criminal Misc. Application No.209 of 2014.
2. The facts giving rise to this petition may be summarized as under: 2.1 The petitioner no.1 and the respondent no.1 are the husband and wife. They are muslims. In the wedlock, a son was born who is aged 2 & 1/2 years as on today. On account of matrimonial problems, the respondent no.1 wife all of a sudden left the matrimonial home leaving behind her 2 & 1/2 years old son with the father and his family members. The petitioner no.2 before me is the motherinlaw of the respondent no.1. It appears that the respondent no.1 filed an Page 1 of 5 R/SCR.A/5195/2014 ORDER application being Criminal Misc. Application No.209 of 2014 in the Court of the learned Additional Civil Judge & J.M.F.C., Khambhalia and prayed for a warrant under Section97 of the Cr.P.C. seeking custody of her minor son. The learned J.M.F.C., Khambhalia allowed the application and ordered the husband to hand over the custody of the minor son viz.Moyuddin to the respondent no.1. It is, this order passed by the learned J.M.F.C., which is the subject matter of the challenge.
3. Mr. Rachh, the learned advocate appearing on behalf of the petitioners while assailing the order submits that the learned Judge ought not to have exercised its power under Section97 of the Code for the simple reason that the custody of the minor son with the father cannot be said to be unlawful in any manner. Mr. Rachh submits that there may be a matrimonial dispute between the husband and his wife but at the same time as on today, the custody of the minor son is with the father. In such circumstances, it could not be said that the custody is unlawful, so as to seek the custody of the child by way of a warrant under Section97 of the Cr.P.C.
4. Mr. Rachh has placed strong reliance on the decisions of the Hon'ble Supreme Court in the Case of 'Ramesh Vs. Laxmibai' reported in (1998) 9 SCC 266 and in the case of 'Anjali Anil Rangari Vs. Anil Kripasagar Rangari' reported in (1997) 10 SCC 342. Mr. Rachh has also placed reliance on a decision of this Court in the case of 'Rajesh Govind Patanwadia Vs. Anita Rajesh Patanwadia' reported in 2009 (2) GLH 19. Mr Rachh has also placed reliance on one unreported judgment rendered by the learned Single Judge of this Court dated 10.04.2013 in the case of 'Vinodbhai Dhudabhai Bhagora Vs. Kadiben, D/o. Kanabhai Sakabhai Kalasva & Anr.' in Special Criminal Application No.1430 of 2008. Mr. Rachh submits that having regard to the settled position of law, the impugned order deserves to be quashed.
Page 2 of 5R/SCR.A/5195/2014 ORDER
5. Mr. Dabhi, the learned APP appearing on behalf of the respondent no.2 State of Gujarat submits that there need not be any debate so far as the position of law is concerned, but at the some time, the Court may consider the fact that the son is aged 2 & 1/2 years. The father plys a rickshaw. He would be out of the house practically for the whole day and the child would be in the care of other female members of the house, which may include the grandmother of the child. Mr. Dabhi, submits that when the mother is very much there, there is no reason why the child should be taken care by the grandparents. He submits that although the order may not be in accordance with law, yet this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India may refuse to interfere with such order.
6. It cannot however be gainsaid that the supervisory powers under Article 227 of the Constitution are not appellate powers. The Court exercising supervisory powers will do so in order to do justice between the parties and not to do injustice between the parties, even if the order sought to be revised is not in confirmity with law. The distinction between the appellate powers and the supervisory powers, which are analogous to the revisional powers is succinctly brought out in the ruling of the Allahabad High Court in the case of Emperor V. Jafar Khan, reported in (36) 1935 Cr.L.J. 907. It has been held therein:
"It is very important and would save much waste of the time of the Courts if it was thoroughly realised that there is a distinction between a revision and an appeal. In the latter the appellant is given a statutory right to demand an adjudication from the Court either on a question of fact or on a question of law or upon both. When a matter comes upon revisionsal jurisdiction the applicant has no rights whatsoever beyond the right of bringing his case to the notice of the Court. It is for the Court to interfere in exceptional cases where it seems that some real and substantial injustice has been done. That is the main point which the Court has to consider. A revisional application is not to be regarded as in some sort a Page 3 of 5 R/SCR.A/5195/2014 ORDER second appeal on a question of law."
7. The Court exercising supervisory jurisdiction may refuse to interfere with the impugned order even if it is shown not fully in accordance with law if substantial justice is found to have been done between the parties.
8. I may quote with profit the observations made by this Court in the case of 'K.P. Chavda Vs. N.K. Chavda' reported in 1992 (2) GLR 1520, which reads as under: "16. It may be noted that extraordinary powers are conferred on the High Court under Art.226 of the Constitution of India. The exercise of these powers is however considered to be at the discretion of the High Court. In a given case, the High Court may not grant the relief to the petitioner if no serious injustice is caused to him even if the action complained of may not be found to be in strict confirmity with law. In its Division Bench ruling (to which I was a party) in the case of Saurashtra Paper and Board Mills V. State, reported in [1992 (2)] XXXIII (2) GLR 871 this Court has held that the powers under Art.226 of the Constitution of India are discretionary and in a fit case the Court should refuse to exercise such discretionary powers even if the impugned action is found to be not in accordance with law. In that case one notification issued under the relevant provisions contained in the Minimum Wages Act, 1948 was found to be in accordance with law. This Court however refused to quash it or set it aside in exercise of its extraordinary jurisdiction under Art.226 of the Constitution of India on the ground that no substantial injustice was caused to the petitioner thereby. It cannot be gainsaid that like these extraordinary powers under Art.226 of the Constitution of India the revisonal powers under the Cr.P.C. are discretionary in nature."
9. I may now deal with the three decisions relied upon by Mr. Rachh. In the case of ''Ramesh Vs. Laxmibai (supra)', it appears that the child was living right from the beginning with his own father. Under such circumstances, the Hon'ble Apex Court took the view that Section 97 of the Code, primafacie, would not be attracted when the child was living with his own father. In the present case, the husband, wife and Page 4 of 5 R/SCR.A/5195/2014 ORDER the child were living together. However, due to matrimonial problem, the wife all of a sudden left the house. She is now seeking custody of her minor son, who is just 2 & 1/2 years age. It is true that she could not have taken recourse of Section97, but having taken recourse of Section97 and having been succeeded, I may not like to interfere in the peculiar facts of the case.
10. In the case of 'Anjali Anil Rangari (Supra)', the custody was with the mother. The Hon'ble Supreme Court observed that the custody of the child with the mother could not be said to be in any manner either unlawful or that the children were wrongfully confined by the mother at Delhi. The case of Rajesh Govind Patanwadia was also decided in the facts of that case.
11. Thus, having regard to the fact that the minor son is just 2 & 1/2 years of age and the mother is very much there to take care of the child, it would not be in the fitness of things to interfere with the impugned order, although the same could be termed as one not in accordance with law.
12. In the result, this application fails and is hereby rejected. The applicants are directed to comply with the order passed by the learned J.M.F.C., Khambhalia dated 18.11.2014 at the earliest.
(J.B.PARDIWALA, J.) aruna Page 5 of 5