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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Kuldip Singh, J.
Shri Ankush Thakur, Shri Vir Singh Thakur And Smt. Leela Thakur – Appellant
Versus
State Of Himachal Pradesh – Respondent
Criminal MMO No. 214 of 2011
Decided On : 13-01-2012
Custody Dispute - Hindu Minority and Guardianship Act, 1956 - Section 6, Section 97 Cr.P.C. - Summary
Fact of the Case:
The petitioners, parents and grandparents of a child, were involved in a custody dispute with the respondent, the child's mother. The respondent alleged that the child was illegally taken away from her custody by the petitioners.
Finding of the Court:
The court found that the father, as the natural guardian, had the right to keep the child and had not committed any offence. The court held that the proceedings under Section 97 Cr.P.C. were of a summary nature and the respondent was at liberty to file appropriate proceedings for custody in the competent court.
Issues: Custody dispute, jurisdiction of the court, application of Section 97 Cr.P.C.
Ratio Decidendi: The father, as the natural guardian, has the right to keep the child and is not committing an offence by doing so. The proceedings under Section 97 Cr.P.C. are of a summary nature, and the respondent is at liberty to file appropriate proceedings for custody in the competent court.
Final Decision: The petition was allowed, and the order passed by the Sub Divisional Magistrate was set aside, quashing the pending case.
JUDGMENT :
Kuldip Singh, J.
1. This is a petition under Article 227 of the Constitution of India read with Section 482 Cr.P.C. for quashing order dated 31.10.2011 passed by respondent No. 2 Sub Divisional Magistrate, Solan in case No. 394/2004 of 2011 and for quashing of entire proceedings of case No. 394/2004 of 2011 pending before respondent No. 2.
2. The facts, in brief, are that petitioner No. 1 and respondent No. 3 are husband and wife. The petitioner No. 2 is the father and petitioner No. 3 is the mother of petitioner No. 1. The petitioner No. 1 and respondent No. 3 got married on 8.10.2009. The further facts as narrated in the petition are that Master Karanvir Singh Thakur was born from the wedlock of petitioner No. 1 and respondent No. 3 on 9.6.2010 at Kamla Nehru Hospital, Shimla. The child from birth is looked after by the petitioner No. 3.
3. The respondent No. 3 after availing maternity leave left Shimla for Parwanoo alongwith petitioner No. 1 and the child in order to join her duties. The petitioner No. 3 stayed at Parwanoo to look after child as the respondent No. 3 was unable to look after the child being employed.
4. The petitioner No. 2 a heart patient had to live alone at Shimla and managed his affairs himself. This completely disturbed the life of petitioners No. 2 and 3. So petitioner No. 3 in November, 2010 decided to go back to Shimla as the petitioner No. 2 was not keeping good health. The respondent No. 3 requested petitioner No. 3 to take Master Karanvir Singh Thakur alongwith her on the plea that respondent No. 3 being a working woman will not be in a position to look after the child. The respondent No. 3 further told petitioner No. 3 that she and petitioner No. 1 will keep on visiting Shimla to meet the child. In these circumstances, since November, 2010, Master Karanvir Singh Thakur is living at Shimla with petitioners No. 2 and 3 and they are taking proper care of the child.
5. The respondent No. 3 on joining her duty at Parwanoo completely neglected the child which led to differences between husband and wife. On several occasions petitioner No. 1 requested respondent No. 3 to quit the job for some time till the child is not in a position to go to crche. The respondent No. 3 turned down the request of petitioner No. 1 by stating that the petitioner No. 3 will take care of the child till the child is not in a position to go to the school.
6. The relationship between the petitioner No. 1 and respondent No. 3 deteriorated due to non-caring attitude of respondent No. 3 towards the child. The petitioner No. 1 and respondent No. 3 had been visiting Shimla to meet the child, which arrangement continued till March, 2011. The respondent No. 3 stopped visiting Shimla on every week end. The respondent No. 3 since June, 2011 completely stopped visiting Shimla. In the beginning of August, 2011 in the absence of petitioner No. 1, the respondent No. 3 packed her luggage and left the house without informing petitioner No. 1 and since then respondent No. 3 is residing at Dharampur with her relative.
7. On 12.9.2011 petitioner No. 2 received a call from Police Station, Chotta Shimla to visit the Police Station immediately alongwith petitioner No. 1 and petitioner No. 3. The petitioners visited said Police Station and found father and other relatives of respondent No. 3 in the Police Station. The S.H.O., Police Station, Chotta Shimla alongwith relatives of respondent No. 3 insisted upon the petitioners to hand over the custody of the child to respondent No. 3. The S.H.O., Police Station, Chotta Shimla even threatened to involve the petitioners in some false case u/s 498-A IPC. The petitioners declined to hand over the custody of the child to respondent No. 3. The S.H.O., Police Station, Chotta Shimla allowed the petitioners to go home.
8. On 17.9.2011 the petitioners were again asked to visit the Police Station, Chotta Shimla. On that date also, the S.H.O., Police Station, Chotta Shimla and relatives of respondent No. 3 put p
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