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High Court of Calcutta
Kalidas Mukherjee, J.
Kajal Mukherjee – Appellant
Versus
Anamika Mukherjee – Respondent
CRR No. 728 of 2011
Decided on : Jun 16, 2011
CUSTODY OF CHILD - HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - SECTION 6 - SECTION 97 OF THE CODE OF CRIMINAL PROCEDURE - CUSTODY OF CHILD BELOW FIVE YEARS OF AGE - WELFARE OF THE CHILD - PARAMOUNT CONSIDERATION - FATHER'S CONSENT IN FAMILY COURT PROCEEDINGS - RELEVANCE.
Fact of the Case:
The petitioner, the father of a 2-year-5-month-old child, challenged the order of the lower courts directing the recovery of the child from his custody under Section 97 of the Code of Criminal Procedure. The child's mother had filed a complaint under Sections 498A, 406, 120B IPC, and Section 4 of the Dowry Prohibition Act, alleging that the petitioner and his family members had wrongfully confined the child and deprived him of proper nourishment, care, and affection.
Finding of the Court:
The court held that the custody of a child below five years of age should remain with the mother, as per the provisions of the Hindu Minority and Guardianship Act, 1956. The court also noted that the petitioner had given consent in the family court proceedings for the child to remain in the mother's custody.
Issues: 1. Whether the provisions of Section 97 of the Code of Criminal Procedure could be invoked to recover the child from the custody of the father. 2. Whether the welfare of the child should be the paramount consideration in determining custody. 3. Whether the father's consent in the family court proceedings regarding the child's custody was relevant.
Ratio Decidendi: 1. The court relied on the Supreme Court's decision in Anjali Anil Rangari v. Anil Kripasagar Rangari, where it was held that the custody of a child with the mother could not be considered wrongful confinement. 2. The court also referred to the decision in Parimal Kanti Pal v. State of West Bengal, where it was held that the welfare of the child was the paramount consideration in determining custody, even if the child had completed five years of age. 3. The court found that the petitioner had given consent in the family court proceedings for the child to remain in the mother's custody, which was a significant factor in determining the child's welfare.
Final Decision: The court dismissed the revisional application, holding that the findings of the lower courts were not liable to be interfered with. However, the court clarified that this finding was confined to the proceedings under Section 97 of the Code of Criminal Procedure and would not affect any other proceedings regarding the child's custody.
KALIDAS MUKHERJEE, J.
1. THIS is an application under Section 482 of the Code of Criminal Procedure assailing the Order dated 04.01.2011 passed in criminal Revision No. 151 of 2010 by the Learned Additional Sessions Judge, 4th Fast Track Court, Bichar Bhawan, Calcutta affirming the order dated 19.03.2010 passed by the Learned Additional Chief Metropolitan Magistrate, Calcutta in Shyampukur PS Case No. 79 dated 20.03.2011 under Sections 498A/ 406/ 120B IPC and allowing the prayer of the de facto complainant under Section 97 of the Code of Criminal Procedure for the recovery of the child from the custody of the petitioner / father.
2. SMT. Anamika Mukherjee filed a petition of complaint before the learned Additional Chief Metropolitan Magistrate, Calcutta under Sections 498A/ 406/ 120B and Section 4 of the Dowry Prohibition Act which was sent to the Shyampukur P.S. under Section 156(3) Code of Criminal Procedure. Another application was filed by the complainant under Section 97 of the Code of Criminal Procedure wherein it has been alleged that the accused Nos. 1 to 3 conjointly entered into conspiracy and kept the sucking baby away from the petitioner and thus wrongfully confined the baby. It has been alleged that the baby was thus deprived of proper nourishment, care and affection. It has been stated in the petition under Section 97 Cr. P.C. that the baby is aged about 2 years 5 months.
3. THE learned Magistrate vide order dated 19.03.2010 was pleased to issue search warrant observing that such a baby was inseparable from his mothers lap. THE finding of the learned Magistrate was affirmed by the Learned Additional Sessions Judge, Fast Track 4th Court, Bichar Bhawan, Calcutta.
4. THE learned counsel appearing for the petitioner submits that the marriage took place on 16.01.2005 and the baby was born on 07.10.2007. It is submitted by the learned counsel that on 28.04.2008 the wife left the matrimonial home leaving the 6 months old baby with the husband, and on 19.03.2010 the petition of complaint was filed under Section 156(3) Cr. P.C. within an application under section 97 Cr. P.C. It is contended that under Section 97 Cr. P.C. no search warrant can be issued for the recovery of the child from the custody of the father, in as much as, the father is a natural guardian under the law and custody of the child with the father cannot be said to be a wrongful confinement. It is contended that the learned Magistrate was not justified in issuing search warrant on the prayer of the mother for the recovery of the child from the custody of the father.
5. THE learned counsel for the petitioner has referred to and cited the decisions reported in Anjali Anil Rangari vs. Anil Kripasagar Rangari and Ors., 1997 SCC (Cri) 827 (para 3/5], Ramesh vs. Laxmi Bai, 1998 SCC (Cri) 999 (para 4], Yudhistir Mmohanand vs. Dalimba Mohanand, 1990 Cr L J 1085 (Ori) (Para 6/7), Parimal Kanti Pal vs. State of W.B. and Ors. 2007(3) AICLR (Cal) 567 (para 11), Atanu Chakraborty Vs. State of W.B. 2010(2) CHN (Cal) 556 (Para 1/6/7}, Zeenath KV vs. Kadeeja 2007 Cri L.J. 600 (Ker) [Para 1/2/9-35], Akok Thadani vs. Ramesh K. Advani 1982 Cri L. J. 1446 (AP) [Para 10/11], Anjali Anil Rangari vs. Anil Kripasagar Rangari and Ors., 1997 SCC (Cri) 827 (para 4], Bidyut Biswas vs. Kuheli Biswas and State, 2002 (2) CHN 450 [Para 5-9], Ramchandra Keshav Adke vs. Govind Joti Chavare and Ors. AIR 1975 SC 915 [Para 25] and M/S. Mahaluxmi Rice Mills vs. State of U.P., AIR 1999 SC 147 [Para 10].
6. THE learned counsel appearing on behalf of the OP No. 1, that is, the mother of the child, submits that according to the provisions contained in Hindu Minority and Guardianship Act 1956 the child below five years of age will remain in the custody of the mother. It is contended that a matrimonial suit was instituted bearing MAT Suit No. 211/10 before the learned Judge, Family Court, Calcutta, wherein vide order No. 5 dated 21.02.2011 the petitioner herein being the husband gave consent
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