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IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH JALPAIGURI
Shampa Dutt (Paul), J.
Sri Krishna Kundu – Petitioner
Versus
Puja Kundu Mukherjee – Respondent
CRR 291 of 2022
Decided On : 05-04-2023
Penal Code, 1860 – Section 498A, 323, 509, 342, 344 – Criminal Procedure Code, 1973 – Section 97 – Criminal Revision – Dowry demand – Harassment and cruelty – Custody of minor child given to father - Held, Magistrate by his order has handed over child (minor) to father by giving proper reasons – Learned Magistrate has given clear findings and also heard child (most important) – It is on hearing child, whose welfare is paramount handed over child to petitioner/father as desired by child – Session Judge’s findings are contradictory to each other and has thus erroneously set aside Magistrate’s order and directed Magistrate to hear matter afresh, though Magistrate has heard matter extensively and passed order – Sessions Judge came to findings – CRR allowed.
JUDGMENT :
Shampa Dutt (Paul), J.
1. The present revision has been preferred praying for setting aside of order no. 15 dated 30.11.2022 passed by learned Additional Sessions Judge, Fast Track Court, Siliguri in connection with Criminal Revision No. 30 (12) of 2020 (CIS No. 30 of 2020).
2. The petitioner’s case in short is that the petitioner got married with the opposite party on 20.05.2010 and after their marriage the petitioner and the opposite party started to lead their conjugal life at their matrimonial house at Bairagi Para, Mohit Nagar, Assam More, Police Station-Kotwali, District – Jalpaiguri and since the solemnization of marriage the opposite party was reluctant to stay at her matrimonial house and as a result in the month of April 2011 the petitioner was forced by the opposite party to leave his parental house and shift to a rented house in Siliguri. Out of their wedlock the opposite party gave birth to a male child on 30.10.2013.
3. The petitioner/husband states that since the inception of the marriage the petitioner was subjected to tremendous mental and physical torture by the opposite party and on 23.03.2020 the petitioner was forced to leave the rented house in Siliguri along with his minor son and come back to his house at Bairagi Para, Mohit Nagar, Assam More, Police Station-Kotwali, District-Jalpaiguri.
4. That on the basis of false and baseless allegations against the petitioner, the opposite party lodged a written complaint before the Siliguri Women Police Station on 06.06.2020 and on the basis of the said written complaint the concerned authority registered an First Information Report vide Siliguri Women Police Station Case No. 74 of 2020 dated 06.06.2020 under Section 498A/323/509 of the Indian Penal Code, 1860.
5. That only with an intention to further harass the petitioner, the opposite party on 17.08.2020 filed a complaint before the learned Additional Chief Judicial Magistrate, Siliguri vide CR Case No. 314 of 2020 under Section 342/344 of the Indian Penal Code, 1860 along with an application under Section 97 of the Code of Criminal Procedure, 1973 for issuance of search warrant.
6. The case was subsequently transferred to the court of learned Judicial Magistrate, 1st Court, Siliguri and the learned Magistrate gave extensive hearing to both the parties and also recorded the statement of the minor child wherein the minor child specifically stated that he wants to stay with his father as his mother is violent in nature. Accordingly vide order dated 12.10.2020 the learned Judicial Magistrate, 1st Court, Siliguri was pleased to hand over the custody of the minor child in favour of the petitioner/father.
7. Challenging the aforesaid order dated 12.10.2020 passed by the learned Judicial Magistrate, 1st Court, Siliguri, the opposite party moved a revisional application before the learned Sessions Judge, Darjeeling vide Criminal Revision No. 30(12) of 2020. Vide order dated 30.11.2022 the learned Additional Sessions Judge, Fast Track Court, Siliguri was pleased to set aside the order passed by learned Judicial Magistrate, 1st Court, Siliguri. Hence the revision.
8. Mr. Anirban Banerjee, learned counsel for the petitioner has submitted that while setting aside the order passed by the learned Magistrate the learned Additional Sessions Judge, Fast Track Court, Siliguri failed to appreciate that the paramount consideration for the Court is the welfare of the minor child and if the child is handed over to his mother in spite of her violent and abusive nature instead of the petitioner who is extremely loving and caring to the child, then it will cause tremendous hazard to the future of the minor child.
9. Mr. Banerjee has further submitted that the learned Sessions Court has failed to appreciate that the custody of a child cannot be claimed by filing an application under Section 97 of the Code of Criminal Procedure, 1973.
10. It is also submitted that the learned Trial Court failed to appreciate that the minor child voluntar
Section 7 of Wards Act, 1890 provides that Court, on satisfaction that it is for welfare of a minor, can pass order appointing a guardian of person or property of minor or both.
The welfare of the child is paramount in custody disputes, and a father's custody cannot be deemed wrongful confinement under Section 97 CrPC.
The welfare of the child is the paramount consideration in custody disputes, and custody with the father cannot be deemed wrongful confinement under Section 97 CrPC.
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The court established that interim custody can be granted in criminal proceedings based on DNA evidence, but such evidence alone does not determine parenthood, and the welfare of the child must be th....
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The main legal point established in the judgment is the court's interpretation of the powers of the Magistrate under Section 28 of DV Act to devise its own procedure and issue appropriate directions ....
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