Madhya Pradesh High Court
Priyank vs The Sub Divisional Magistrate on 25 April, 2025
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
NEUTRAL CITATION NO. 2025:MPHC-IND:12771 1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 25th OF APRIL, 2025
WRIT PETITION No. 5741 of 2025
PRIYANK AND OTHERS
Versus
THE SUB DIVISIONAL MAGISTRATE AND OTHERS
Appearance:
Shri Deeptanshu Shukla - advocate for the petitioner.
Dr. Shri Amit Bhatia - G.A. appearing on behalf of Advocate General.
Shri Nikhil Basantani, advocate for respondent No.2.
ORDER
Heard finally with the consent of the parties.
1] This writ petition has been filed by the petitioners, who are the husband and minor son of the respondent No.2, against the order dated 31/01/2025, passed by the respondent No.1, the Sub Divisional Magistrate, Rau Area, Collectorate, Indore, whereby a search warrant under Section 97 of Cr.P.C./ S.100 of Bhartiya Nagrik Suraksha Sanhita, 2023 has been issued at the instance of the respondent No.2/wife of petitioner No.1 for recovery of her son, the petitioner No.2. 2] In the present case, this Court had also tried to explore the possibilities of amicable settlement between the parties, and even the Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 19-05-2025 18:50:41 NEUTRAL CITATION NO. 2025:MPHC-IND:12771 2 custody of the child was handed over to the respondent no.2 for a brief period of time, which she already restored to the petitioner no.1, however, the efforts have failed, and thus, the matter is heard finally. 3] Despite such failure of the settlement, Shri Nikhil Basantani, learned counsel for respondent No.2, at the outset, has submitted that the petitioner No.2 Ashish Jain may be allowed in the custody of respondent No.2 for some more days so that some progress can be made towards settlement, and for which, the respondent No.2 is also ready to reside in her flat at Kota, which she jointly owns with her husband, the petitioner No.1. However, Shri Deeptanshu Shukla, learned counsel for the petitioner has submitted that the respondent No.2 has also filed an FIR u/s.498A of IPC and as such the criminal proceedings have already been initiated against the petitioner No.1 and his family members and in the circumstances, such settlement is not possible. 4] In brief, the facts of the case are that the petitioner No.1 and respondent No.2 are the husband and wife whose marriage was solemnized on 26/06/2011, and out of this wedlock, they also have a son Ashish, the petitioner No.2, who is around 10 years old. Both the petitioner No.1 and respondent No.2 are qualified software engineers. However, a dispute has arisen between them, as a result of which, respondent No.2 left her house at Kota (Rajasthan) and has come to Indore to her parents' house, as a result of which, petitioner No.1 has also filed an application under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights at Kota (Rajasthan) on 17/05/2024, and subsequent to that, respondent No.2 has also lodged an FIR at Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 19-05-2025 18:50:41 NEUTRAL CITATION NO. 2025:MPHC-IND:12771 3 Crime No.288/2024 under Section 498-A, 323, 34 of IPC on 11/07/2024 against the petitioner No.1 and his family members. The petitioner has also filed a petition under Section 482 of Cr.P.C. M.Cr.C. No.50210/2024 before this Court for quashing the aforesaid FIR, which is still pending. It is further the case of the petitioners that since respondent No.2 had left her house at Kota and had also left the petitioner and her child behind, she, with malafide intentions filed an application under S.97 of Cr.P.C./S.100 of BNSS before the respondent No.1/Sub Divisional Magistrate, Rau, Indore, who has issued the impugned search warrant on 31/01/2025, directing the petitioner to appear before him on 10/02/2025, hence, this petition. The petitioner no.1 has already been granted interim protection by this Court vide order dated 18/02/2025.
5] Shri Deeptanshu Shukla, learned counsel for the petitioners has submitted that the impugned order dated 31/01/2025 is bad in law and is liable to be quashed as the SDM has no power to issue a search warrant of a child, who is already in the legal custody of his father. It is submitted that by no stretch of imagination, it can be said that the petitioner No.2 is in wrongful confinement of his father/petitioner No.1. In support of his submissions, Shri Shukla has also relied upon various decisions rendered by this Court, as also of the Supreme Court viz., W.P. No.20426/2023 dated 27/09/2023 in the case of Lalit S/o Shri Kanhaiyalal Joshi vs. Sub Divisional Magistrate, Khargone and another, W.P. No.17603/2020 dated 12/03/2021 passed in the case of Jaya Chakravarti vs. State of M.P. and others, M.Cr.C. Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 19-05-2025 18:50:41 NEUTRAL CITATION NO. 2025:MPHC-IND:12771 4 No.20409/2019 dated 30/11/2019 in the case of Deepak Pathake and others vs. State of M.P. and another, and the decision rendered by the Supreme Court in the case of Vishnu Prasad vs. Preetibala reported as 2015 SCC OnLine MP 6452, in which it is held that under Section 97 of Cr.P.C., the Magistrate cannot issue a direction for production of his/her child from the custody of the other spouse because the custody of the child with his father or mother does not amount to wrongful confinement, and no offence can be said to have been committed attracting the provisions of Section 97 of Cr.P.C. 6] The prayer is vehemently opposed by Shri Nikhil Basantani, learned counsel for respondent No.2, and it is submitted that no case for interference is made out as the Supreme Court, time and again has emphasised that while deciding the custody of a child, the interest of the child has to be given the paramount consideration by the Courts, and in such circumstances, if the SDM has issued the search warrant for recovery of the child, who is in custody of his father for more than one year, and the father is not allowing the mother/respondent No.2 herein to meet her son, it amounts to illegally depriving him of his mother's love and affection and vice a versa. In support of his submissions, Shri Basantani has relied upon the decision in the case of Gohar Begum vs. Suggi Alias Nazma Begam reorted as AIR 1960 SC 93, Dr. (Mrs.) Veena Kapoor vs. Shri Varinder Kumar Kapoor reportes as AIR 1982 SC 792, Nabamita Chowdhury vs. State reported as 2012 SCC Online CAL 6868, Zahirul Hassan vs. State of U.P. reported as 1988 Crl. LJ 230/1987 SCC Online All 483, Purushottam Wamanrao and another Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 19-05-2025 18:50:41 NEUTRAL CITATION NO. 2025:MPHC-IND:12771 5 vs. Warsha and another reported as 1992 Crl.J. 1688 and Yashita Sahu vs. State of Rajasthan and others passed in SLP (Crl) No.7390 of 2019.
7] Shri Amit Bhatia, learned G.A. appearing on behalf of the State, on the other hand, opposed the prayer and it is submitted that since no illegality has been committed, no case for interference is made out. 8] Heard learned counsel for the parties and perused the documents filed on record.
9] From the record, it is found that the facts are not disputed, as admittedly, a search warrant has been issued by the respondent No.1 SDM, Rau, Indore under Section 97 of Cr.P.C./ s.100 of BNSS for production of petitioner No.2, who happens to be in the custody of his own father/petitioner No.1, and there is nothing on record to suggest that the petitioner no.2 is being kept in an illegal custody by the petitioner no.1 who is his father.
10] This Court also finds that the very question of a Sub Divisional Magistrate issuing a search warrant for recovery of a child from his/her parent has been raised time and again by one of the parties to the marriage, and it is now trite that a child, who is in the legal custody of mother or father cannot be said to be in wrongful confinement. This aspect of the matter has been subject matter of various petitions in this Court, some of the decisions have also been placed on record by the learned counsel for the petitioners, and in the case of Lalit S/o Shri Kanhaiyalal Joshi and Jaya Chakravarti (supra), the coordinate benches of this Court has relied upon various decisions of the Supreme Court Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 19-05-2025 18:50:41 NEUTRAL CITATION NO. 2025:MPHC-IND:12771 6 including that of Ramesh vs. Laxmibai reported as (1998) 9 SCC 266 to hold that Section 97 of Cr.P.C. cannot be invoked for recovery of a child from the custody of his/her parents. The relevant paras of the decision passed by this Court in the case of Jaya Chakravarti (supra) read as under:-
"10. Section 97 Cr.P.C gives power to the Magistrate to issue a search warrant if he has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence and upon search, if the person is found in the confinement shall be taken before the Magistrate who shall make such order as in the circumstances of the case seems proper. Section 98 Cr.P.C gives power to the Magistrate for the restoration of liberty of a woman or a female child under the age of 18 years who is under abduction or unlawful detention and the female child under the age of 18 years to her husband, parent, guardian or other person having the lawful charge of such child, therefore, admittedly, in this case, the provision of section 98 Cr.P.C does not apply because it deals with a woman or female child below the age of 18 years and the respondents No.5 & 6 are male children. So far the power under section 97 Cr.P.C is concerned such power is liable to be exercised if the Magistrate has a reason to believe that any person is confined under such circumstances that confinement amounts to an offence. In the present case admittedly the respondents No.5 & 6 were living with the petitioner/mother who is a natural guardian, therefore, it cannot be termed as 'confinement' and the same is not an offence. In the present case, the Magistrate has not recorded its satisfaction that the respondents No.5 & 6 were in the confinement of the mother which amounts to an offence.
11. The Apex Court in the case of Ramesh vs. Laxmi Bai reported in (1998) 9 SCC 266 has held that section 97 of the Cr.P.C does not attract in the case when the child was living with his own father. In the case of Tejaswini Gaud & others vs. Shekhar Jagdish Prasad Tewari & others reported in (2019) 7 SCC 42 the Apex Court has held that in the child custody matter the ordinary remedy lies wholly under the Hindu Minority and Guardianship Act or the Guardians and Wards Act, as the case may be. In the cases arising out of the proceeding under the Guardian and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area in which the Court exercises the jurisdiction and the welfare of the child. Even in the writ of habeas corpus where the Court is of the view that a detailed enquiry is required the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil Court. This Court in the case of Pushpa Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 19-05-2025 18:50:41 NEUTRAL CITATION NO. 2025:MPHC-IND:12771 7 Ramesh Kumar Patwa vs. Ramesh Kumar Badri Prasad reported in 2000 (3) MPLJ 268 has held that in the exercise of power under section 97 of the Code the Magistrate cannot issue a direction for production of a child from the custody of the father and direct that the child shall be in the custody of the mother because the custody of the child with the father does not amount to wrongful confinement thereby no offence is committed attracting the provision of section 97 of the Cr.p.C. The High Court of Calcutta in the case of Lily Manna vs. State of West Bengal and others reported in 2008 Cri.LJ 625 has held that sine qua non of application of section 97 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. The High Court of Rajasthan in the case of Jaishree Tiwari vs. State of Rajasthan & others reported in 2013 CriLJ 610 has held that the Executive Magistrate has no power under section 97 to wrest custody of the child from its natural guardian.
Admittedly, when the child was in the custody of the minor there was no reason to believe that he was under wrongful confinement and as such issuance of the search warrant was itself uncalled for and accordingly the order of the Magistrate was set aside being an illegal, perverse and absolutely abuse of process of Court."
(emphasis supplied) 11] Whereas, in the case of Lalit S/o Kanhaiyalal Joshi (supra), which is a short order, this Court has passed the following order:-
"In the instant petition, a challenge has been made to the order dated 24.7.2023 passed by respondent No.1-SDM, Khargone whereby he has directed custody of the child with the respondent No.2 under the provisions of section 97 of the Cr.P.C.. 2. Counsel for the petitioner submits that petitioner is father of the child and the SDM has no jurisdiction to pass an order of custody of the child under section 97 Cr.P.C.. In support of his submission, he has placed reliance on the judgment passed by the Apex Court in the case of Ramesh Vs. Laxmibai (1998) 9 SCC 266 wherein it has been held that power under section 97 cannot be invoked in respect of the child living with his father and order of transfer is not tenable. He also relied upon the judgment passed by this Court in the matter of Pushpa Vs. Ramesh Kumar, 2000(3) MPLJ 268. 3.
Counsel for respondents could not support the order impugned in view of settled law by the Apex Court and this Court in the above mentioned cases that SDM cannot pass an order for custody of the child under section 97 Cr.P.C.. 4. In view of aforesaid, the impugned order dated 24.7.2023 is quashed. However, liberty is granted to the respondent No.2 to seek custody of the child in accordance with the provisions of Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 19-05-2025 18:50:41 NEUTRAL CITATION NO. 2025:MPHC-IND:12771 8 Guardian and Wards Act. With the aforesaid, the petition is allowed and disposed off."
(emphasis supplied) 12] Counsel for the petitioners has also relied upon the decision rendered by the coordinate Bench of this Court, at Jabalpur passed in M.Cr.C. No.10676/2016 dated 10/10/2017, in which also, this Court, while relying upon the decision rendered by the Supreme Court in the case of Ramesh vs. Laxmibai (1998) 9 SCC 266 has held that the SDM has no jurisdiction to issue search warrant of a child, who was in the custody of his father.
13] So far as the decisions relied upon by the learned counsel for respondent No.2 are concerned, the same are distinguishable on facts and none of the decisions relates to Section 97 of Cr.P.C. and are related to only the principles governing the best interest of the child. 14] This Court is also of the considered opinion that it is true that the Court is also required to see the best interest of the child, however, in the facts and circumstances of the present case, when both the parties are well educated and are also well off, it cannot be said that the child's interest would be prejudiced if he is allowed to reside with his father. Even otherwise, when the child's custody can be obtained under the provisions of Guardian and Wards Act, 1890, instead of resorting to the said Act, invocation of the powers vested u/s.97 of Cr.P.C. is clearly an abuse of the process of law to one's own advantage which cannot be countenanced in the eyes of law.
15] In such facts and circumstances of the case, the impugned search warrant issued by the respondent No.1 SDM is hereby quashed with an Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 19-05-2025 18:50:41 NEUTRAL CITATION NO. 2025:MPHC-IND:12771 9 exemplary cost of Rs.5,000/- to be paid by the respondent No.1 the SDM, Rau, Distirct Indore, for deliberately exceeding his jurisdiction in issuing the impugned search warrant for the production of a child from his own father, despite the fact that the law in this regard has already become settled long ago, as explained in the various decisions of this court as well as the Supreme Court.
16] The aforesaid cost of Rs.5,000/- shall be deposit by the respondent No.1 in the account of President and Secretary H.C. Employees Union H.C. (Account No.63006406008, Branch Code No. 30528, IFSC No. SBIN0030528, CIF No. 73003108919) within a period of one month, and the acknowledgement of the same shall be filed before the Registry of this Court.
17] However, this Court leaves it to the respondent No.2 to file appropriate application under the appropriate law, for the custody or visitation rights of the child, which shall be decided by the concerned Court, in accordance with law, without being influenced by the present order passed by this Court.
18] Accordingly, the writ petition stands allowed and disposed of.
Sd/-
(SUBODH ABHYANKAR) JUDGE krjoshi Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 19-05-2025 18:50:41