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.

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 ties with the petitioner and the petitioner was constrained to shoulder the responsibility of his minor son by all means.

3. It is stated that while the minor son of the parties was in lawful custody and care of the petitioner, the respondent out of vengeance and ill advice, filed a false and frivolous application under section 97 of CrPC before the court of learned Sub-Judge/ Judicial Magistrate 1st Class, Chadoora, and a direction was sought upon SHO Police Station, Chadoora, to recover the minor son of the parties from the alleged wrongful confinement of the petitioner. The court directed for production of the minor child and then handed over his custody to the respondent in terms of order dated 24.02.2024. The warrant for search of minor son of the parties came to be issued pursuant to which the concerned SHO took the lawful custody of the minor child from the petitioner. Thereafter, the learned Magistrate handed-over the custody of minor child to the respondent. Subsequent to the passing of the impugned order, some other orders have also been passed in the matter, which have the effect of confirming the custody of the minor child with the respondent.

4. The petitioner has assailed the impugned order dated 24.02.2024 on the ground that the proceedings initiated under section 97 CrPC tantamount to abuse of the process of courts. It is also stated that Section 97 CrPC clearly states that search warrant in respect of a person who is alleged to have been confined can be issued only if the said act amounts to confinement as defined under law. It is stated that it is a settled law that the father is the natural guardian of the minor child, therefore, the custody of the minor child with the father can never be considered as wrongful confinement or something which may amount to an offence.

5. Learned counsel for the petitioner has relied upon the judgement passed by this court in case titled [1]Showkat Ahmad Mir vs. Nighat begum bearing CRM (M) No. 240/2022 decided on 12th February, 2024.

6. Per contra, learned Senior Counsel for the respondent has stated that on 23.02.2024, the respondent along with her minor son were on the way to meet some relatives/friends at Chadoora, and on reaching near the market, the petitioner, in a well planned conspiracy, snatched the minor child from the respondent forcibly and illegally with the threat that in case the respondent approaches any forum, she will suffer dire consequences, including threat to her life and property. As such respondent was constrained to approach the court of learned Judicial Magistrate, Chadoora, by way of filing an application under section 97, CrPC.

7. Learned senior counsel has relied upon judgment delivered by the Bombay High Court in case titled Purushottam Wamanrao Thakur v. Warsha W/o Narendra Th