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2012 Supreme(Jhk) 1552
JHARKHAND HIGH COURT
D.N. UPADHYAY, J.
Shree Prakash Singh @ Shree Babu - Petitioner
Versus
State of Jharkhand & Anr. - Respondents
W.P. (Cr) No. 230 of 2011
Decided on : October 31, 2012
P.C. Tripathy, Sr. Adv. for the petitioner
Abhay Mishra, SC-II, for the State.
Manoj Choubey and Bhola Nath Ojha, for the respondent No.2.
The welfare of the children should be the paramount consideration in deciding custody, and the role of the mother is crucial in a child's life.
Headnote:
Custody Dispute - Child Welfare - Section 97 of Cr. P.C - Guardianship and Wards Act, 1980, Hindu Minority and Guardianship Act, 1956 - The court discussed the legal provisions related to custody of children, the welfare of the child, and the use of Section 97 of Cr. P.C. to decide custody. The court emphasized the importance of the mother's role in a child's life and the need for a competent court to decide guardianship.
Fact of the Case:
The case involved a custody dispute over three minor children born out of a strained marriage. The mother alleged cruelty and torture by the husband and in-laws, leading to a case under various sections of the Indian Penal Code and the Dowry Prohibition Act. The father and his family members were taking care of the children, while the mother sought custody through a petition under Section 97 of Cr. P.C.
Finding of the Court:
The court found that the custody of the children should be decided in the interest and welfare of the children, considering the role of both parents. It emphasized the importance of the mother's role in a child's life and directed the children to be given in the custody of the mother until the issue of guardianship is decided by a competent court of law.
Issues: The main issue was the custody of the minor children and the application of Section 97 of Cr. P.C. to decide custody. The court also considered the welfare of the children and the conflicting claims of the parents.
Ratio Decidendi: The court held that the welfare of the children should be the paramount consideration in deciding custody. It emphasized the importance of the mother's role in a child's life and directed the children to be given in the custody of the mother until the issue of guardianship is decided by a competent court of law.
Final Decision: The court partly allowed the petition, setting aside the impugned order regarding custody and directing the children to be given in the custody of the mother until the issue of guardianship is decided by a competent court of law.
D.N. UPADHYAY, J.-This Writ Petition (Criminal) has been filed for quashing of the order dated 1.8.2011 passed by the learned Chief Judicial Magistrate. Bokaro in Misc. Case No. 7/2011 whereby the learned Chief Judicial Magistrate. Bokaro has been pleased to issue search warrant under Section 97 of Cr. P.C in respect of the children namely Rishabh Singh (son). Tanya and Mahi (both daughters) who were born on 15.12.2005. 25.7.2007 and 3.11.2009 respectively as a result of the marriage solemnized between the respondent No. 2 Smt. Nidhi Singh and Shekhar Singh (son of the petitioner) and further directed to hand over the minor children to the respondent No.2 Smt. Nidhi Singh who is the mother of those children.
2. The brief facts of the case and reason behind passing of the impugned order are as under :-
Smt. Nidhi Singh (respondent No.2) was married with Shekhar Singh (son of the petitioner Prakesh Singh @Shree Babu) on 21.1.2005 and after the marriage. Nidhi Singh started living with her husband and in-laws at Patna at their residence mentioned in this petition. Out of said wedlock. Nidhi Singh delivered three children namely Rishabh Singh (son), Tanya and Mahi (both daughters). But Nidhi Singh did not experience happy conjugal life and she was treated with cruelty and subjected to torture and assault on various occasions by various means for want of Maruti Esteem Car and other articles.
It is also alleged that Rishabh Singh, after eight days of his birth was taken away from the lap of his mother Nidhi Singh (respondent No.2) and he was given to her only for the purpose of feeding. Sometimes Nidhi Singh was asked to reside at Patna and sometimes at Kolkata and sometimes at Mumbai. Her husband Shekhar Singh was also not taking care of her and she was subjected to ill treatment by him too.
It is alleged that Nidhi Singh was driven out of her matrimonial home and since 29.4.2011. she has been living with her parent. Because the relation became strain due to demand of dowry and torture committed on her. Nidhi Singh rued a case vide Baridih P.S. Case No. 31 of 2011 under Sections 498-A, 323, 504/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against her husband and in-laws.
On the other hand husband Shekhar Singh also filed suit for seeking divorce and thus the litigation started between the parties and cases were instituted at the places suitable to them.
Since Nidhi Singh was deprived of her children who were forcibly kept by the petitioner and his family members a petition under Section 97 of Cr. P.C. was filed before the learned Chief Judicial Magistrate Bokaro and the case was registered as Misc. Case No. 07 of 2011. After appearance of the parties and granting hearing to them the impugned order was passed and hence this writ petition before this Court.
3. The marriage between Shekhar Singh and Nidhi Singh (respondent No.2) was solemnized on 21.1.2005 and out of the wedlock aforesaid three children were born and petitioner happens to be grand father of those children. It is contended that learned Chief Judicial Magistrate. Bokaro has no occasion to pass impugned order on the basis of a petition filled by the respondent No.2. It is contended that aforesaid three children were left by the opposite party No. 2 and she came back to her parent's house at Bokaro. The children are living with their father who happens to be natural guardian and the children are being taken care of by the .grand parents and other family members of Shekhar Singh. The learned Chief Judicial Magistrate has travelled beyond jurisdiction by passing the impugned order under Section 97, Cr. PC and also by deciding custody of the children. By referring to Section 97. Cr. P.C. it was submitted that if any District Magistrate. Sub Divisional Magistrate or the Magistrate of 1st Class has reason to belief that any person is confined under such circumstances that confinement amounts to an offence he, may issue a search warrant.
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