Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Raj) 2139

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Vijay Bishnoi, J.
Jyoti Songara – Appellant
Versus
State Of Rajasthan & Ors. – Respondents
S.B. Criminal Misc(Pet.) No. 21/2022
Decided On : 16-02-2022

Advocates appeared:
Mr. Trilok Joshi, for the Appellant
Mr. Mahipal Bishnoi, Pp Mr. D.S. Thind, Ms. Sapna Vaishnav For Complainant Ms. Jyoti Songara, Petitioner, Mr. Arvind Kumar, Ms. Nirmala, Respondent Nos.6 And 7 Respectively Along With Petitioner's Minor Son, Present In Person, for the Respondent.

The welfare of a minor child, especially below the age of five, is of paramount consideration in determining custody, as per the provisions of the Hindu Minority and Guardianship Act, 1956.

Headnote:
Criminal Misc. Petition - Custody of Minor Child - Hindu Minority and Guardianship Act, 1956, Section 6(a) - The court discussed the provisions of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, and emphasized the presumption in favor of the mother for the custody of a minor child below the age of five. The court also referred to the decision in Roxann Sharma Vs. Arun Sharma, which clarified the significance of the word 'ordinarily' in the provision, placing the onus on the father to prove that it is not in the welfare of the child to be placed in the custody of the mother.
Fact of the Case:

The petitioner sought a search warrant to produce her minor son, alleging illegal confinement by her husband. The revisional court stayed the trial court's order and granted custody to the respondent No.6.
Finding of the Court:

The court found that the welfare of the minor son, who was just six months old, was paramount and that he should be in the care of his mother. It also admitted the matter for further consideration.
Issues: The issues revolved around the custody of the minor child, the maintainability of the proceedings under Section 97 and 98 CrPC, and the revision petition filed by the respondent No.6.
Ratio Decidendi: The court emphasized the presumption in favor of the mother for the custody of a minor child below the age of five, as per Section 6(a) of the Hindu Minority and Guardianship Act, 1956, and considered the welfare of the child as the primary concern.
Final Decision: The court ordered the immediate handover of the custody of the minor son to the petitioner and scheduled the matter for final disposal.

JUDGMENT

1. This criminal misc. petition under Section 482 CrPC has been preferred on behalf of the petitioner being aggrieved with the order dated 22.12.2021 passed by the Additional Sessions Judge (Link Officer), Raisinghnagar, District Sriganganagar (for short 'the revisional court'), whereby the revisional court while exercising the revisional jurisdiction has stayed the order dated 07.12.2021 passed by the SDM, Anoopgarh, District Sriganganagar (for short 'the trial court')-

2. Vide order dated 07.12.2021, the trial court has issued a search warrant on an application under Section 97/98 CrPC preferred by the petitioner before the trial court. In the aforesaid application, the petitioner has alleged that custody of her minor son, who was born on 11.08.2021 was forcibly taken by the respondent No.6 on 20.9.2021, who is her husband. It is also alleged by the petitioner that at present her minor son is in illegal confinement of the respondent Nos.6 and 7, so search warrant may be issued and her minor son be produced before the trial court.

3. Learned counsel for the petitioner has argued that pursuant to the search warrant dated 07.12.2021, the SHO, PS Anoopgarh, Distt. Sriganganagar went to Delhi, where the respondent No.6 resides, but the search warrant could not be served upon them as house of the respondent Nos.6 and 7 was locked. Again the search warrant was issued on 20.12.2021 by the trial court, however in between on 10.12.2021, the respondent No.6 has preferred a revision petition before the revisional court and in that revision petition, no notices were issued to the petitioner and on an application preferred on behalf of the respondent No.6, the Link Officer has taken up the matter and passed the impugned order dated 22.12.2021. It is submitted that before passing of the order dated 22.12.2021, no opportunity of hearing was given to the petitioner.

4. It is further submitted that from the order dated 22.12.2021, it is clear that the petitioner was informed on mobile when she was not present in Anoopgarh but the revisional court has treated the said information as sufficient and observed that service of notice upon the present petitioner is sufficient.

5. Learned counsel for the petitioner has also submitted that the revision petition filed by the respondent No.6 against the interlocutory order is not at all maintainable, but despite that the revisional court has granted indulgence and passed the impugned order. Learned counsel for the petitioner has also submitted that the petitioner's minor son is only six months of age and is required to be taken care by his mother only.

6. It is also submitted that as per the provisions of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (for short 'the Act of 1956'), as a matter of course of custody of a minor, who has not completed the age of five years, ordinarily be with mother.

7. Learned counsel for the petitioner while placing reliance on the decision of the Hon'ble Supreme Court rendered in the case of Yashita Sahu V. State of Rajasthan & Ors (Criminal Appeal No.127/2020 decided on 20.01.2020) has argued that welfare of a child is paramount consideration and a minor below the age of five years should ordinarily be remain in the custody of his mother.

8. Per contra, learned counsel Mr. D.S. Thind has argued that proceedings under Section 97/98 CrPC initiated at the instance of the petitioner before the trial court are not at all maintainable. Itis submitted that minor son of the petitioner and the respondent No.6 is in custody of the respondent No.6, who is also a natural guardian and in such circumstances, it cannot be said that the custody of the minor son with the respondent No.6 is illegal in any manner. It is also submitted that the petitioner in a petition for mutual divorce filed before the ADJ, Karanpur under Section 13-B of the Hindu Marriage Act, has specifically agreed that custody of the minor child will remain with the respondent No.6.

9. Learned counsel

Click Here to Read the rest of this document