Gujarat High Court
Nadimbhai Ibarahimbhai Vaghadiya vs State Of Gujarat & on 26 February, 2013
Author: N.V.Anjaria
Bench: N.V.Anjaria
NADIMBHAI IBARAHIMBHAI VAGHADIYA....Applicant(s)V/SSTATE OF GUJARAT R/CR.RA/14/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 14 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes 2 To be referred to the Reporter or not ?
Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 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 ?
No 5 Whether it is to be circulated to the civil judge ?
No ================================================================ NADIMBHAI IBARAHIMBHAI VAGHADIYA....Applicant(s) Versus STATE OF GUJARAT &
1....Respondent(s) ================================================================ Appearance:
MR HARSHIT TOLIA FOR MR PB KHANDHERIA, ADVOCATE for the Applicant(s) No. 1 MR PP MAJMUDAR, ADVOCATE for the Respondent(s) No. 2 NOTICE SERVED BY DS for the Respondent(s) No. 2 MR LR PUJARI APP for the Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE N.V.ANJARIA Date :26/02/2013 CAV JUDGEMNT The question involved in this Revision Application is about the custody of a minor son, now aged 23 months, and the question arises in the context of proceedings under section 97 of the Code of Criminal Procedure, 1973, (hereinafter referred to as `the Code ). Respondent No.2 -wife staying at Upleta since separation from the applicant husband, filed an application under the aforementioned provisions asking for custody of son Ayan from the applicant. The father and the minor son have been at Bengaluru.
1.1 Learned Judicial Magistrate First Class, Upleta at Rajkot, dismissed the Criminal Miscellaneous Application No. 269 of 2012 by order dated 25.10.2012 passed below Exh.1. Respondent No.2 preferred Revision Application before the Sessions Court. The learned Sixth Additional Sessions Judge, Rajkot at Dhoraji, decided the said Revision Application No. 54 of 2012, and by order dated 18.12.2012, directed the father applicant herein to give custody of the minor son to the mother.
2. With the above brief preface, the facts in the background may be noted, to be useful in better comprehending the factual facets and in properly addressing the legal aspects involved. The marriage of the spouses was solemnized on 03.05.2009 at Upleta in accordance with the Muslim Shariyat rites. After the marriage, both started living at Bengaluru. On 14.04.2011, a boy child named Ayan born out of the wedlock. Respondent No.2 wife left the matrimonial house on 14.08.2012. She later moved an application under section 97 of the Code, after leaving the company of husband, and prayed for search warrant for the custody of Ayan. Her case, as stated in the said application, appears to be that she had called her father to Bengaluru because of harassment by the husband. In a writing dated 14.08.2012 got executed on stamp paper, her father took all responsibility of hers. It is the case that when they left the matrimonial house, applicant-husband did not send Ayan. However, he stated that he would be sending Ayan after festival of Ramjan Id. It is respondent No.2 s case that since son was not sent despite subsequent efforts, she filed the application in question under the provisions of the Code.
2.1 The applicant filed reply to the said application of wife, wherein it was stated that it was only with consent of respondent No.2-mother that Ayan was in his custody. It was stated that it was always open to her to come to Bengaluru to stay in the house with him and/or also to come to see the son any time. It was stated that son Ayan was happily staying at father s home. He was being given medicines and vaccinations regularly. Denying the allegations of harassment, husband stated that when father of the respondent No.2 took her with him, she was having two and half month s pregnancy. However, they left his house and that his father-in-law executed a writing dated 14.08.2012 in his own handwriting owning the entire responsibilities of respondent No.2. Respondent No.2 also signed the writing. It was the case that she was not interested to live with husband or minor son, and on reaching Upleta, she aborted her pregnancy, even which conduct was self-explanatory, according to the applicant. The applicant stated also the details about his family and asserted that Ayan was staying under their caring umbrella.
3. Learned Sessions Judge while allowing the Revision of respondent No.2-wife rested his order on the reasoning that the welfare of the child would be better served if he stays with mother. He reasoned that looking to the age of the child, custody is required to be given to the mother. He also concluded that wife was compelled to leave her matrimonial home and that the exigency of the situation demanded that the custody of the child should be restored to mother.
Learned advocate for the applicant-husband Mr. Harshit Tolia holding brief for learned advocate Mr. P.B. Khanderia submitted that the learned Sessions Judge has failed to appreciate the facts of the case correctly, and has further overlooked the scope of powers under section 97 of the Code. He in his submissions elaborated the circumstances when the wife left the husband s house, and highlighted on that basis, that it was a voluntary conduct on the part of the wife that she left the minor son with the husband-father virtually deserting him. At that time, she was pregnant. A writing was executed by her father owning all the responsibilities, and did not claim custody of Ayan, it was submitted. It was further submitted that she got her pregnancy aborted afterwards, therefore, her own conduct was not well-intentioned from the beginning.
4.1 On the other hand, learned advocate Mr. P.P. Majmudar for respondent No.2 submitted that the learned Magistrate has rightly emphasised that a minor of seventeen months has to be with his mother only. It was submitted by him that the paramount consideration of welfare of child is the relevant consideration, which was applied by the learned Sessions Judge, and the order is proper order. Both the learned advocates relied on decisions of the Supreme Court as well of this court, which are referred to and discussed herein. Learned A.P.P. submitted that welfare of the child is always relevant factor to be borne in mind by the court in cases of claim for custody.
5. The court has anxiously and carefully considered the facts involved. They are required to be appreciated in light of provision of section 97 of the Code for considering the submissions. Section 97 of the Code with reference to which the claim for custody of minor Ayan is based may be considered at the outset. The said provision reads as under:
97. Search for persons wrongfully confined. (1) If any District Magistrate, Sub-divisional Magistrate of 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 person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.
5.1 The aforesaid provision contemplates the three ingredients to be satisfied, before the Magistrate can issue the warrant for search.
Firstly, he has reason to believe that any person is confined. Secondly, such confinement has to be revealed, and thirdly, the confinement amounts to an offence. The jurisdiction which learned Magistrate exercises under this provision is criminal jurisdiction. The orders to be passed therein are to be in respect of those cases where a person is found to be under wrongful confinement. The provision attaches importance on the liberty of person who is found in confinement, which is way of offence. By empowering the Magistrate to issue search warrant in respect of person in such wrongful confinement.
5.2 The facts if considered prima facie from the perspective of the kind and nature of the powers and jurisdiction available under section 97 of the Code, it is the position that minor boy is in the custody of his father, who is his natural guardian. The elements of wrongful confinement cannot be said to be existing when the father in the capacity of natural guardian is having custody of his own child, of course, the other conditions being normal. The facts which have come on record also reveal that respondent No.2 wife while leaving the house of the applicant husband with her father executed a writing. The same is relied on by the learned Magistrate to come to a conclusion that wife left the husband s home and minor son out of her own will. A copy of the said writing was made available to the court for perusal. It showed that the father of the wife took her with him when she was pregnant for two and half months, owning all the responsibilities on his shoulder. Son Ayan, aged seventeen months at that time, remained with the father. It is also stated that upon going to her father s house at Upleta, wife terminated her pregnancy by opting for abortion. On the basis of such conduct of the wife of leaving husband s house with father upon execution of writing, and later aborting the pregnancy, and also leaving the minor son with the applicant, it was sought to be submitted that the act of wife was willful, and the conduct not well-intentioned . Such is the position prima facie emerging.
5.3 In above view, it would be in no way legitimate and legal to conclude that the minor son is in wrongful confinement, and that his custody with the father amounts to an offence. A minor boy in the custody of his father cannot be said to be wrongfully confined. Such custody unless otherwise emerging, cannot be termed as illegal. Father being a natural guardian, a minor son remaining in his custody as against the mother, commits no offence in all normal circumstances. Therefore, where the custody of minor is with the father, and no other debilitating circumstance pointed out, the Magistrate exercising powers under section 97 of the Code cannot be said to have reason to believe that there is a wrongful confinement.
5.4. In Ramesh v. Lakshmibai [(1998) 9 SCC 266], the Supreme Court held that the application of respondent-wife for custody of nine years old child living with his own father, was not liable to be entertained under section 97 of the Code. The Supreme Court approved the order of grant of custody in favour of the father holding that the child cannot be said to be wrongfully confined so as to attract section 91. This High Court in Rajeshbhai Govindbhai Patanwadia Vs. Anitaben Rajeshbhai Patanwadia [2009(2)G.L.H.19] had an occasion to consider a similar issue wherein the question was of custody of minor children of five years and two years, which was in the context of nearly similar set of facts. It was observed thus:
7.
Revisional Court has committed gross error in allowing Revision application while setting aside order passed by Magistrate Court and power has been exercised u/s 97 of Cr. P. C. to have custody by mother in light of such warrant is totally without jurisdiction. The purely Civil dispute converted in Criminal proceeding while cut short it and obtain order from Court. Such practice has been adopted by respondent may be based on some advice but legally that is not proper way to have custody of minor children from father. This being Civil dispute must have to be filed before Civil Court having jurisdiction and Civil Court can consider it whether custody of minor child may be given to father or mother? This cut short method adopted by respondent is deprecated.
5.5 Similarly, this court in Labhubhai Babubhai Desai vs. State of Gujarat in Criminal Miscellaneous Application No. 12567 of 2010 decided by oral order dated 25.10.2010 considered a similar issue. In the said order, the court considered the aspect that normally having regard to the paramount consideration of welfare of the child, the leaning is to give custody of the minor child to the mother. Yet, it was held in the context of the powers under section 97 that the Magistrate would be prevented from exercising the jurisdiction under section 97 of the Code in issuing search warrant for securing the custody of minor children who are with the father. The following observations may be usefully extracted from the said order:
6. Whenever question of custody of minor children is concerned, the Courts have always adopted approached the issue with more humanitarian rather legal problem. In case of infants, Courts have always leaned in favour of the mother taking care of extremely young impressionable children unless it is brought on record that the mother suffers from some disqualification by virtue of her character, total inability to take care of the child or such other handicap. Question of custody of minor children is never a static problem and the issue can be reexamined at any stage. In Division Bench judgment dated 23.04.2010 in the case of Sujit J. Munshi vs. Shilpa R. Shinde rendered in Letters Patent Appeal No.889 of 2009, it was observed:
7. xxx xxx xxx We feel so because in our opinion in a case where question of custody of minor child is concerned, it is the welfare of the minor alone which should be of paramount consideration. No other factor can have overriding effect over the welfare of the minor. So much has been well laid down in a series of decisions of this Court as well as Apex Court. In case of Nil Ratan Kundu and another v. Abhijit Kundu reported in 2009(9)Supreme Court Cases 413, the Apex Court observed that :
39. The principles in relation to custody of a minor child are well settled.
In determining the question as to who should be given custody of a minor child, the paramount consideration is the welfare of the child and not rights of the parents under a stature for the time being in force.
In case of Athar Hussain v. Syed Siraj Ahmed and others reported in (2010) 2 Supreme Court Cases 654, the Apex Court observed with approval the observations in case of R.V. Srinath Parasad v. Nandamuri Jayakrishna reported in (2001) 4 SCC 71, to the effect that custody orders by their nature can never be final. However, before a change is made, it must be proved to be in the paramount interest of the children. It was further observed that strict parameters governing an interim injunction do not have full play in matters of custody. With respect to the wish of minor, the Supreme Court observed that :
52. The High Court had relied heavily on the preference made by Athiya Ali who then was 10 to 11 years' old. In the opinion of the High Court, she was capable of making intelligence preference. It may be true that 11 years is a tender age and her preference cannot be conclusive. The contention of the appellant in this respect is also supported by the decision in Bal Krishna Pandey case. But as we are not dealing with the question of guardianship, but only with the issue of the interim custody, we see no reason why the preference of the elder child shall be overlooked.
7. Despite this, judicial pronouncements noted above would prevent learned Magistrate from exercising the jurisdiction under Section 97 of the Cr.P.C. in issuing search warrant for securing custody of minor children who are with the father. To that extent, learned counsel for the petitioner is legally correct.
(emphasis supplied)
6. Learned advocate for the respondent relied on an order of this court in Meenakshiben Rana v. State of Gujarat dated 06.12.2010 passed in Special Criminal Application No. 1648 of 2009. It was submitted on the basis of the said order and emphasised that the custody of minor children is to be given to mother as was directed to be given in that case by this court. It was submitted that in that case interim order was passed handing over the custody of minor which was made final in the aforesaid order. It was also submitted that the said order being later in point of time, it is required to be followed as binding.
6.1. On going through the decision in Meenakshiben (supra), it is seen in that case that number of interim orders were passed by this court and the custody of the child was handed over to mother on certain terms and conditions and those orders were passed while reserving visiting rights to the husband. At the time of final disposal of the matter, the interim arrangement was directed to be continued without prejudice to the rights and conditions of the respective parties to initiate appropriate proceedings before the civil court or any other court. The said decision was based on its own facts and cannot be applied. In any view in Meenakshiben (supra) neither the decision of the Supreme Court in Ramesh (supra) or the decision of this court in Rajeshbhai Govindbhai Patanwadia (supra) was referred to. Therefore, the said order in Meenakshiben (supra) can be said to be precedent sub silentio. The Apex Court in Municipal Corporation of Delhi vs. Gurnam Kaur [(1989) 1 SCC 101] which was referred to with approval in M/s. A-One Granites, Appellant v. State of U.P. [AIR 2001 SC 1203] observed as under:
In General V/s. Worth of Paris Ltd. (k) (1936) 2 All ER 905 (CA), the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. V/s. Bremith Ltd. (1941) 1 KB 675, the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed."
(emphasis supplied) 6.2 Similarly in In the case of Arnit Das v. State of Bihar, 2000 (5) SCC 488, while examining the binding effect of such a decision, this Court observed that which has escaped in the judgment is not the ratio decidendi, and that the rule of sub silentio in the technical sense is that when a particular point of law was not consciously determined.
7. In light of the above position of law, it has to be held that the order of learned Sessions Judge directing custody of the minor to be given to respondent No.1 does not stand legal in terms of exercise of powers under section 97 of the Code. For the reasons discussed above, the finding of the learned Sessions Judge that the child was forcefully taken or snatched away from the respondent No.2-mother by the appellant-father is wholly unfounded and based on surmise.
There is nothing on facts to suggest that the applicant has obtained custody of Ayan per force from the mother.
7.1 The aspect of welfare of child is not to be treated wholly foreign, may rather be treated as germane, to the orders of custody that may be passed by the Magistrate in exercise of powers under section 97 of the Code. But the said consideration shall have to be disciplined by the contours and limits of the powers and the jurisdiction exercisable under it. The welfare of child concept will take colour in light of the scope and import of the said provision only, and has to be considered in such context. The perception of justification of custody and the considerations to be applied, including the welfare aspect, may differ while considering the issue in other statutory jurisdictions. How to apply these considerations in respect of a particular case and in particular jurisdiction would depend upon the peculiarities of the case and specialties of the facts. Each case has to be tested on its own as to whom the custody of the child should be handed over. There cannot be settled formula in this regard nor there can be set criteria.
7.2 The facts not in dispute and the circumstances emerging in the present case unequivocally suggest that son Ayan is happily and safely, right from the time he was 17 months old and now attaining 23 months of age, remained with his natural guardian and father. There is nothing to suggest that in the absence of mother, proper care of the child is not being taken. It could not be disputed that Ayan is being administered the necessary medicines and vaccinations, which a child of his age is required to be given. If custody of Ayan is disturbed now, it will prejudicially affect the minor child living life. The husband has in his reply expressly and in so many terms stated that he is ready to keep the wife with him, and also that she may at any time come to see the child. However, the spouses have continued to be at loggerheads. It appears that the wife has been at Upleta, far away from Bengaluru where the minor son has stayed under the canopy of his father s love safely and steadily.
8. It is hastened to be made expressly clear here that the present order and the observations made hereinabove are confined to the proceedings which are initiated under section 97 of the Code. The wife has already filed an application for custody of minor Ayan under the Guardians and Wards Act, 1890, which is pending before the competent court, as stated by the learned advocates. Respondent No.2 is not precluded to seek expeditious hearing and decision in the said proceedings to establish her claim in accordance with law.
8.1 Learned advocate for the respondent further submitted that wife had also initiated the proceedings under the Protection of Women from Domestic Violence Act, 2005, and in that context, relied on the observations made in paragraph No. 8 of the order in Labhubhai Babubhai Desai (supra), Despite above conclusion, it is not that wife is remediless or that she would have to fight unending legal battle to secure custody of two children barely aged 5 years. Law provides for sufficient remedies taking care of such situation. Under the Protection of Women from Domestic Violence Act, 2005 (for short the Act ), the competent Magistrate has enough powers to pass appropriate orders under such circumstances. Whenever wife or woman complaining of domestic violence approaches the learned Magistrate and also seeks appropriate relief for custody of minor children who are separated from her, it is well within domain of learned Magistrate to pass interim order and in a given case, even ex parte ad interim order. In particular, under Section 21 of the Act, it is open for the learned Magistrate at any stage of hearing of the application to grant temporary custody of the child or children to aggrieved person.
8.2 It goes without saying that the above observations may hold good for the present case as well, and the wife could very well assert her rights with regard to the custody of her son, to be decided in accordance with law. The proceedings pending under the Guardians and Wards Act, 1890, or the proceedings which may have been started under the Protection of women from Domestic Violence Act, 2005, as stated by the learned advocate for the respondent-wife, shall not be influenced by this order. Any observation made in this order shall not be construed as an opinion to guide or glide the outcome of such other proceedings, which shall be decided in accordance with law and on its own merits.
9. However, for the reasons and discussion as above, the order impugned in this Revision Application arising from the proceedings under section 97 of the Code cannot be approved, as it suffers from total non-consideration of the parameters of powers to be exercisable under section 97 of the Code and the kind of jurisdiction the said provision contemplates.
10. Accordingly, the order dated 18.12.2012 passed by the learned Additional Sessions Judge, Rajkot at Dhoraji in Criminal Revision Application No.54 of 2012 is hereby set aside. The present Revision Application is allowed in the aforesaid terms by making the Rule absolute.
(N.V.ANJARIA, J.) sndevu Page 13 of 13