Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(J&K) 212

High Court of Jammu and Kashmir and Ladakh at Srinagar
Rahul Bharti, J.
Ayat Nabi – Appellant
Versus
UT of J&K and Others – Respondent
WP(Crl.) No.522/2022
Decided on : 10-08-2022

Advocates:
Advocate Appeared:
For the Petitioner:Ms. Sabeena Naveed, Advocate
For the Respondent:Ms. Insha Haroon, GA and Mr. Sajad Geelani, Advocate

IMPORTANT POINT : Where a preferential custody of child in law is to be with mother but is not with her then upon examination of circumstances of case issuance of search warrant cannot be denied to a mother.

Headnote:
Code of Criminal Procedure, 1973 – Section 97[Section 100 of J. & K. Cr.P.C., 1989] – Constitution of India – Article 226 – Issuance of search warrant for production of child – Situation of freeing a person under custody by resort to remedy of habeas corpus is examinable by triangular reference – One from perspective of person under custody, second one from perspective of person in whose custody a person is and third angle from perspective of person who claims custody of person from one holding/having the custody – Court posed with a situation to examine liberty related case of an individual through mode of writ of habeas corpus, proceedings under Section 97 Cr.P.C., 1973 is not to be expected to go only by optics of the event as if to answer a multiplication question of math but to examine three-dimensional aspect of case to come to hold if physical liberty a person is under a seize/control/catch which is not lawful – Where a preferential custody of child in law is to be with mother but is not with her then upon examination of circumstances of case issuance of search warrant cannot be denied to a mother whose act of approaching Magistrate with application for issuance of search warrant for securing preferential or otherwise also custody of her child from custody of father may be registration of her statement that child’s custody is under circumstances which render it confinement which amounts to offence. (Paras 19, 20, 27, 28 and 29)

Order :

1. Heard Learned Counsel for the parties.

2. Through this writ petition a direction in the nature of habeas corpus is sought by the petitioner for the purposes of securing the production and physical custody of the person of her newborn child (son) from her husband who is the respondent no. 4 and who is the father of the child.

3. The situation which has led the petitioner to approach this court with a petition for habeas corpus direction is the refusal and rejection of her petition made on 01/07/2022 to the Chief Judicial Magistrate, Sopore under section 97 of the Code of Criminal Procedure, 1973 (in short Cr.P.C, 1973) for issuance of search warrant for production of her child. The Chief Judicial Magistrate, Sopore, vide his order dated 13/07/2022, rejected her petition on the ground that as the child was unwell and being looked after by his father in terms of medical treatment from SKIMS Srinagar, so the custody of the child with the father was not amounting to an offence.

4. This writ petition was filed on 25/07/2022. The birth of child of the petitioner and the respondent no. 4 has taken place on 06/05/2022 which means that at the time of hearing and adjudication of this writ petition the child is still less than four months old and instead of being in the lap of the petitioner to receive breast feeding from her is in the arms of the respondents no. 4. The marital relationship of the petitioner and the respondent no. 4 is said to be in a state of spilt leaving the two residing in separation from each other. The petitioner is staying in her parental house in village Mundji while the respondent no. 4 is residing in his parental house in village Duroo. Thus, the petitioner felt herself separated from her newborn child from the very date of his birth in the hospital where she had undergone a cesarean for childbirth when the respondent no. 4 had taken the child for post birth urgent medical treatment of the child. The petitioner feels that by not restoring the physical custody of the child to her the respondent no. 4 and his family members are committing a wrongful act and which is not in the welfare of the child.

5. The petitioner and the respondent no. 4 solemnized marriage in year 2021 and the marriage is an arranged one. The petitioner and the respondent no. 4 come from a very humble rural background. The respondent no. 4 is a low scale govt. employee while the petitioner is a household woman having studied up to 12th Standard.

6. This court, while issuing notice to the respondent no. 4 in the case, vide an order dated 27/07/2022 also directed the S.H.O Police Station Bomai, Sopore, to secure the presence of the respondent no. 4 along with child before this court. Direction given vide order dated 27/07/2022 was reiterated in an order dated 01/08/2022 for S.H.O Police Station, Bomai, to carry out the compliance by the next date which was 09/08/2022.

7. Accordingly, the respondent no. 4, accompanied with his own mother carrying the child in her arms, and the learned counsel representing the respondent no. 4, had come present.

8. The petitioner along with her counsel was also present.

9. Before ordering the respondent no. 4 to hand over the custody of the child to the petitioner, this Court had deemed it fit to first examine and interview both the petitioner and the respondent no. 4 and also their respective counsel by holding the proceedings in the court chambers so as to relieve the petitioner and the respondent no. 4 from the stress of open court proceedings.

10. This Court, upon examination and interview of the petitioner and the respondent no. 4, found them to be of sound mind and good disposition bearing no personal grudge against each other and that is a good sign for their prospective marital rapprochement. This Court came to be apprised by the respondent no. 4 that the child is in regular need of medical checkup at SKIMS, Srinagar for which the respondent no. 4 has been taking the child for advised medical tre