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High Court Of Calcutta
P. N. Sinha, J.
PARIMAL KANTI PAL - Appellant
Versus
STATE OF WEST BENGAL - Respondent
CRAN 1374 Of 2006
Decided On : 02/15/2007
SEARCH WARRANT - CHILD CUSTODY - HINDU MINORITY AND GUARDIANSHIP ACT - SECTION 97 OF THE CODE OF CRIMINAL PROCEDURE - ILLEGAL CONFINEMENT - WELFARE OF THE CHILD - PARENTAL RIGHTS - JURISDICTION OF CIVIL COURT: 1. A search warrant for the recovery of a minor child from the custody of the father cannot be issued unless it amounts to illegal confinement constituting an offence. 2. Under Section 6(a) of the Hindu Minority and Guardianship Act, the father is the natural guardian, but the mother has the preferential right in respect of custody of a child below five years of age. 3. The action of the husband in driving out the wife from her matrimonial home and keeping the minor child in his custody may amount to an offence under Sections 23, 40, 43, and 340 of the Indian Penal Code. 4. Before issuing a search warrant, the Magistrate must state in the order the reasons for issuing the search warrant and must be prima facie satisfied that the action of the person against whom the search warrant is issued amounted to illegal confinement constituting an offence. 5. In a matter of dispute between the husband and wife concerning the custody of a child who has completed five years, the paramount consideration is the welfare of the child. 6. The District Court of the concerned district is the proper Court to consider the matter in relation to the custody of the child after considering the paramount consideration of the welfare of the child.
Fact of the Case:
The petitioner, the husband, filed a revisional application challenging the order of the Additional Sessions Judge affirming the order of the Magistrate issuing a search warrant for the recovery of the petitioner's minor son from his custody on the application of the opposite party, the wife, under Section 97 of the Code of Criminal Procedure. The wife had alleged that the petitioner had driven her out of the matrimonial home on 18.12.2004, taking away their minor son in their custody. The petitioner contended that the wife had voluntarily left the matrimonial home on 18.12.2004, leaving the child in his custody, and that his custody did not amount to illegal confinement constituting an offence. The wife, on the other hand, contended that she was the legal guardian of the child and had the right to pray for a search warrant for the recovery of the child.
Finding of the Court:
The Court held that the order of the Magistrate issuing the search warrant was bad in law as it did not assign any reason and did not disclose the Magistrate's prima facie satisfaction that the petitioner's action amounted to an offence justifying the issuance of the search warrant. The Court further held that the order of the Additional Sessions Judge confirming the Magistrate's order was also not in accordance with law as it failed to consider the illegality of the Magistrate's order and relied on precedents with different facts and circumstances.
Issues: 1. Whether the action of the husband in driving out the wife from her matrimonial home and keeping the minor child in his custody amounted to illegal confinement constituting an offence. 2. Whether the Magistrate had jurisdiction to issue a search warrant for the recovery of the minor child from the custody of the father without assigning any reason and without being prima facie satisfied that the petitioner's action amounted to an offence. 3. Whether the District Court had jurisdiction to consider the matter in relation to the custody of the child after considering the paramount consideration of the welfare of the child.
Ratio Decidendi: 1. The Court held that the action of the husband in driving out the wife from her matrimonial home and keeping the minor child in his custody may amount to an offence under Sections 23, 40, 43, and 340 of the Indian Penal Code, but it must be established on the basis of evidence. 2. The Court held that before issuing a search warrant, the Magistrate must state in the order the reasons for issuing the search warrant and must be prima facie satisfied that the action of the person against whom the search warrant is issued amounted to illegal confinement constituting an offence. 3. The Court held that in a matter of dispute between the husband and wife concerning the custody of a child who has completed five years, the paramount consideration is the welfare of the child, and the District Court of the concerned district is the proper Court to consider the matter.
Final Decision: The Court allowed the revisional application and set aside the orders of the Magistrate and the Additional Sessions Judge. The Court also dismissed the wife's application for vacating the interim order.
( 2 ) AT the time of admitting this revisional application this Court granted stay of the order dated 3. 3. 06 passed by the learned Additional Sessions judge, Durgapur and being aggrieved by, and dissatisfied with, the said interim order, the o. p. No. 2 filed one application for vacating the interim order which was registered as CRAN No. 1374 of 2006 and both the revisional application and the application being CRAN No. 1374 of 2006 were heard analogously. I intend to dispose of both the CRR No. 1387 of 2006 and CRAN no. 1374 of 2006 by this common judgment and order.
( 3 ) MR. Milon Mukherjee, the learned Advocate for the petitioner submitted that the petitioner and O. P. No. 2 are husband and wife and their marriage was solemnised on 31. 1. 01. After marriage they were happy and were blessed with a son named Nilanjan @ Soumendu Pal, who was born on 31. 12. 01. Subsequently, the relation between the husband and wife became strained and the O. P. No. 2 used to inflict both physical and mental torture on the petitioner. On 16. 12. 04 the O. P. No. 2 left her matrimonial home and deserted the petitioner as also the minor son and started living at her paternal home. The petitioner made several attempts to take her back but failed. Thereafter, the petitioner filed an application under section 13 of the Hindu Marriage act (in short the H. M. Act) before the Court of the learned Additional District judge, Durgapur on 21. 1. 05 praying for a decree of divorce which was registered as MAT Suit No. 43 of 2005.
( 4 ) MR. Mukherjee next contended that in the said MAT Suit the petitioner filed an application under section 26 of the H. M. Act praying for order from the concerned Court relating to custody, welfare, maintenance and education of the minor child and the said application is still pending. On 3. 3. 05 the o. P. No. 2 filed an application before the learned SDM, Durgapur praying for issue of search warrant under section 97 of the Code for recovery of her minor son from the custody of the petitioner and the said application was registered as M. P. Case No. 79 of 2005. The learned Magistrate without considering the objection raised by the petitioner by his order dated 21. 4. 05 issued search warrant for the recovery of the minor son from the custody of the petitioner. Being aggrieved by, and dissatisfied with, the order of the learned Magistrate the petitioner preferred one criminal revision before the learned Additional Sessions Judge, Durgapur which was registered as criminal Motion No. 32 of 2005. The learned Additional Sessions Judge by his order dated 3. 3. 06 dismissed the revisional application and hence this revisional application before this Court.
( 5 ) MR. Mukherjee tried to convince me by submitting that both the learned magistrate and the learned Additional Sessions Judge failed to realise that a search warrant for the recovery of a minor child from the custody of father cannot be issued unless it amounts to illegal confinement constituting an offence. By referring to section 6 (a) of the Hindu Minority and guardianship Act, Mr. Mukherjee contended that the father is the natural guardian, however, according to proviso of that section ordinarily custody of a minor, who has not completed age of five years shall be with the mother. The O. P. No. 2 voluntarily left the matrimonial home deserting the petitioner and the minor child. The child was all alon
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