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MOKSHA KHAJURIA KAZMI
Fayaz Ahmad Mir – Appellant
Versus
Nighat Nasreen – Respondent
Key Points: - The welfare of the child is the paramount consideration in custody disputes and custody with the father cannot be deemed wrongful confinement. (!) - The court quashed the Magistrate's order transferring custody to the respondent mother, holding that custody with the father is not wrongful confinement and that Section 97 CrPC proceedings were not properly applicable. (!) (!) - Section 97 CrPC requires both confinement and that such confinement amount to an offence to justify search warrants; otherwise, a Magistrate cannot exercise those powers. (!) (!) (!) - The petitioner-father was held to be the natural guardian; custody with the father cannot be termed illegal confinement. (!) - The impugned order and further proceedings were quashed, but custody with the respondent mother remained undisturbed at that stage, with parties free to seek guardianship remedies under the Guardians and Wards Act for permanent custody. (!) (!) - The record raised concerns about the procedural propriety and timing of the order passed at the magistrate’s residence, prompting directions for an inquiry by the Registrar Vigilance. (!) (!) - The court reaffirmed that the welfare of the child is the primary consideration and that both parents sharing equal responsibility is consistent with modern parenting concepts. (!) - The case references a prior decision by this court and cited principles that custody of a minor with the father cannot be treated as illegal confinement. (!) (!)
JUDGEMENT
1. In this petition the petitioner herein has invoked the jurisdiction of this Court under section 482 of the Code of Criminal Procedure, 1973, for short CrPC, thereby seeking quashment of the order dated 24.02.2024 passed by court of learned Judicial Magistrate, 1st Class, (Sub-Judge), Chadoora, in case titled as Nighat Nasereen versus Fayaz Ahmed Mir and others, in terms of which proceedings under section 97 CrPC have been initiated against the petitioner/father and the custody of the minor Ward of the parties has been taken from the petitioner and handed over to the respondent/ mother.
Factual Matrix
2. The petitioner and respondent entered into wedlock in the year, 2015. Out of the said wedlock, one male issue was begotten who all along remained under the care and protection of the petitioner due to serious medical condition of the respondent. It is stated that petitioner took all possible care of the respondent and during the days of ailment and hospitalization it was the petitioner alone, who bore expenses of a treatment to the tune of lacs of rupees. It is stated that the father of the respondent who happens to be well known, public figure, snapped all matrimonial tie
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.
The welfare of the child is paramount in custody disputes, and a father's custody cannot be deemed wrongful confinement under Section 97 CrPC.
: 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.
The court emphasized the need to consider the circumstances of each case and the welfare of the child in determining the admissibility of a search warrant for child custody under Section 97 of the Co....
Jurisdiction under S.97 of Cr. P.C. for custody matters requires wrongful confinement, which does not apply to parental custody.
The concept of res judicata does not apply in criminal jurisprudence, and subsequent applications for child custody presenting different causes of action are maintainable.
Jurisdiction for custody of a minor must be determined by the child's ordinary residence, as per Section 9 of the Guardians and Wards Act, 1890.
A Magistrate must ensure subjective satisfaction regarding wrongful confinement before issuing a search warrant and must provide opportunity for the involved parties to be heard.
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