Back
BOMBAY HIGH COURT (AT NAGPUR)
SHIMPI, J.
Sk. Razak, Applicant
Versus
Riyasathbi and others, Opponent.
Criminal Revn. Application No. 27 of 1974
Decided On:- 22 -3 -1974.
CRIMINAL PROCEDURE CODE - SECTION 100 - SEARCH WARRANT - CUSTODY OF CHILD - DISCRETION OF MAGISTRATE - REVISION - INTERFERENCE - LEGAL GUARDIANSHIP - MOHAMMEDAN LAW - CONFINEMENT - OFFENCE - REASONABLE BELIEF - JUDICIAL MIND - HINDU MINORITY AND GUARDIANSHIP ACT - SECTION 6 - PROVISO - HIZANAT - GUARDIANS AND WARDS ACT - SECTION 25 - SUMMARY REMEDY - DISCOVERY ORDER - EVIDENCE - MAINTENANCE - WELFARE OF CHILD - SECOND WIFE - GRAND-MOTHER - STEP MOTHER - NATURAL MOTHER - CONSTRUCTIVE CUSTODY - PHYSICAL CUSTODY - LEGAL CUSTODY - WRONGFUL CONFINEMENT - INDIAN PENAL CODE - SECTION 341 - REVISION APPLICATION - JURISDICTION - FINAL ORDER - SEARCH WARRANT - DISCRETIONARY ORDER - MANIFEST ERROR - KINDER GARTEN SCHOOL - EDUCATION OF CHILD - PARENTAL RESPONSIBILITY.
Fact of the Case:
The applicant husband filed a revision application challenging the order passed by the Judicial Magistrate First Class, 8th Court, Nagpur, in Criminal Case No. 6-A of 1973, confirmed in Criminal Revision No. 73 of 1973, seeking to quash the order and remand the application made by the non-applicant wife under Section 100 of the Criminal Procedure Code for recording evidence and passing adequate orders. The facts revealed that the applicant and the non-applicant were married in 1964 and had a son born in 1968. After the birth of the child, relations between the couple deteriorated, leading to the wife leaving the house. The applicant divorced the wife in 1969, and a maintenance decree was granted in favor of the child, who resided with the mother. On 5-1-1973, the applicant allegedly took away the child from the mother's custody, prompting her to file a report with the police. The applicant claimed that he had taken the child with the child's consent. The mother filed an application under Section 100 of the Criminal Procedure Code, seeking the child's custody. The Magistrate issued a search warrant, and after hearing the parties, directed the applicant to deliver the child to the mother as the child was below the age of 7 years. The applicant challenged this order in the Sessions Court, which dismissed the revision application. The applicant then filed the present revision application.
Finding of the Court:
The court held that the Magistrate had reason to believe that the child was confined under circumstances that amounted to an offence, justifying the issuance of a search warrant. The court found that the applicant had taken away the child from the mother's custody without any valid reason, and that this act amounted to confinement. The court also held that the Magistrate had properly exercised his discretion in granting custody of the child to the mother, considering factors such as the child's age, the mother's natural guardianship rights, and the applicant's failure to provide maintenance for the child. The court rejected the applicant's contention that the mother should have filed a suit instead of resorting to Section 100 of the Criminal Procedure Code, stating that the mother was entitled to exercise her right to custody through the summary remedy provided under Section 100.
Issues: 1. Whether the Magistrate had reason to believe that the child was confined under circumstances that amounted to an offence, justifying the issuance of a search warrant? 2. Whether the Magistrate properly exercised his discretion in granting custody of the child to the mother? 3. Whether the mother was entitled to exercise her right to custody through the summary remedy provided under Section 100 of the Criminal Procedure Code?
Ratio Decidendi: 1. The court held that the Magistrate had reason to believe that the child was confined under circumstances that amounted to an offence, justifying the issuance of a search warrant. The court found that the applicant had taken away the child from the mother's custody without any valid reason, and that this act amounted to confinement. 2. The court held that the Magistrate had properly exercised his discretion in granting custody of the child to the mother, considering factors such as the child's age, the mother's natural guardianship rights, and the applicant's failure to provide maintenance for the child. 3. The court held that the mother was entitled to exercise her right to custody through the summary remedy provided under Section 100 of the Criminal Procedure Code, as it was a more expeditious and effective remedy compared to filing a suit.
Final Decision: The court dismissed the revision application, upholding the order of the Magistrate granting custody of the child to the mother.
The applicant husband has filed this revision application praying that the order passed by the Judicial Magistrate First Class. 8th Court, Nagpur, in Criminal Case No. 6-A of 1973 confirmed in Criminal Revision No. 73 of 1973, be quashed and the application made by the non-applicant wife under Section 100 of the Criminal Procedure Code be remanded to the Court of the Magistrate for recording evidence and passing adequate orders as the Magistrate would deem fit after hearing the parties.
The facts in brief are as under :-
That the applicant husband was married with the non-applicant sometime in 1964. During the subsistence of the marriage, son was born sometime in 1968. A contention was raised before me by the learned Advocate for the applicant that son was born in 1967. He has produced one certificate of a school which shows that the mother had admitted the boy to the school and the birth date shown in that certificate is 15-4-1968. It is further seen that the position that the boy was born in April 1968 was not disputed in lower Courts. Therefore, that contention was not allowed to be agitated. It is seen that after the birth of the child relations between the husband and the wife deteriorated. The wife i.e., the non-applicant left the house of the husband. There are divergent allegations on that point and it is not necessary to consider those allegations. On 10-4-1969 the applicant divorced his wife by a registered notice. It is further seen that a suit was filed by the wife to recover a downer amount and that amount has been recovered. It has also come in evidence the an application was made by the mother for obtaining maintenance of the child from the applicant-husband and the maintenance at the rate of Rs. 15/- was granted in favour of the child who was residing with the mother. The certificate produced shows that the boy was got admitted to the school on 4-6-1972. The applicant as well as the non-applicant reside at Nagpur in different Mohallas. The non-applicant i.e. the mother of the child was residing with her mother along with the child. Thus, it would be seen that since the birth the child, was residing with the mother. It has further come in evidence and was accepted by the learned Advocate for the applicant that an applicant under the Guardians and Wards Act was preferred by the application after the maintenance decree to obtain the custody of son Rashid but the same was dismissed.
2. It is the allegation of the non applicant mother that on 5-1-1973 at about 7 a.m. the applicant came with some of his friends, made a row, assaulted the mother-non-applicant and took away the child forcibly from her custody. She filed a report with the police but no action appears to have been taken while the version of the applicant-husband was that he was often going to see his child because he was in constructive custody of the child and on 5-1-1973 he had gone to see the child. The child expressed a desire that he would accompany him (the father) and, therefore, the applicant took him. There were the rival versions.
3. It is seen from the record that on 9-3-1973 an application under Section 100 of the Criminal Procedure Code was given by the mother-non-applicant against the applicant in the Court of the Judicial Magistrate First Class, 8th Court, Nagpur. The show cause notice was issued to the applicant who was a non-applicant in that application. Pursuant to the show cause notice he has given his say. It appears that the learned Magistrate, then presiding over the Court did not record the evidence but after hearing the parties, issued order of search warrant. Feeling aggrieved by that order the present applicant had filed a revision application in the Court of the Sessions Judge of Nagpur. However, the same was dismissed and thereafter the proceeding was again sent back to the Magistrate for passing orders as per the latter part of Section 100 of the Criminal Procedure Code. After the papers were received, after hearing the
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
