Jaya Chakravarti vs State of M. P. - 2021 Supreme(MP) 373

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(MP) 373

IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia, J.
Jaya Chakravarti v. State of M. P.
Writ Petition No. 17603 of 2020 (Indore);
Decided on 12.3.2021

Advocates:
Prateek Maheshwari for petitioner;
Valmik Sakargayen, Government Advocate for respondents/State along with Sub-Divisional Magistrate in person;
A.K.Saxena for respondents No.4 to 6.

Headnote:
Constitution of India -- Arts. 226 and 227 -- Criminal P. C., 1973 -- Ss. 97 and 98 -- wrongful confinement, abduction or unlawful detention -- restoration of custody -- whether Magistrate has power u/ss. 97 and 98 to decide dispute of custody of children between father and mother -- petitioner living separately from husband -- sons living with her -- husband sought custody of sons u/ss. 97 and 98 -- custody handed over to him -- held -- provision of S. 98 does not apply because it deals with woman or female child below age of 18 years -- power u/s. 97 liable to be exercised if Magistrate has reason to believe that confinement amounts to offence -- petitioner/mother is natural guardian therefore it cannot be termed as 'confinement' and is not offence -- order per se illegal and without jurisdiction -- that too without following principle of natural justice -- Sub-Divisional Magistrate directed police to produce sons before Court by way of search warrant without considering that such process may affect their mind -- insensitive conduct -- order quashed -- husband directed not to force sons to live with him -- they are free to live with mother -- petition allowed. (1998) 9 SCC 266 and 2019 (4) JLJ 115 followed. 2000 (3) MPLJ 268, 2008 Cr.L.J. 625 (Cal.) and 2013 Cr.L.J. 610 (Raj.) relied on. [Paras 10 & 13]
Hkkjr dk lafo/kku & vuqPNsn 226 rFkk 227 & naM ÁfØ;k lafgrk] 1973 & èkkjk 97 rFkk 98 & lnks"k ifjjks/k] O;igj.k vFkok fof/kfo#) fujks/k & vfHkj{kk dk ÁR;korZu & /kkjk 97 vkSj 98 ds v/khu eftLVªsV dks firk vkSj ekrk ds e/; larku dh vfHkj{kk dk fookn fofuf'pr djus dh 'kfDr gS ;k ugha & ;kph vius ifr ls i`Fkd fuokljr & iq= mlds lkFk fuokjlr & ifr us /kkjk 97 vkSj 98 ds v/khu iq=ksa dh vfHkj{kk ekaxh & mls lkSaih xbZ & vfHkfu/kkZfjr & /kkjk 98 dk mica/k ykxw ugha gksrk D;ksafd og efgyk ;k 18 o"kZ ls de o; dh ckfydk ds ckjs esa gS & /kkjk 97 ds v/khu 'kfDr rc Á;qDr fd, tkus ;ksX; tc eftLVªsV dks fo'okl djus dk dkj.k gks fd ifjjks/k vijk/k dh dksfV esa vkrk gS & ;kph@ekrk uSlfxZd laj{kd gS blfy, bls ^^ifjjks/k** ugha dgk tk ldrk vkSj ;g vijk/k ugha & vkns'k Lor% voS/k vkSj vf/kdkfjrkjfgr & og Hkh uSlfxZd U;k; ds fl)kar dk ikyu fd, fcuk & mi[kaM eftLVªsV us ;g fopkj fd, fcuk fd ,slh ÁfØ;k ls muds eu ij ÁHkko iM+ ldrk gS] iq=ksa dks ryk'kh okjaV ds ek/;e ls U;k;ky; esa ÁLrqr djus dk iqfyl dks funs'k fn;k & vkpj.k vlaosnu'khy & vkns'k vfHk[kafMr & ifr dks funs'k fd og iq=ksa dks vius lkFk jgus ds fy, foo'k ugha djs & og ekrk ds lkFk jgus dks Lora= gSa & ;kfpdk eatwjA ¼1998½ 9 ,l lh lh 266 rFkk 2019 ¼4½ ts ,y ts 115 vuqlfjrA 2000 ¼3½ ,e ih ,y ts 268] 2008 lh vkj ,y ts 625 ¼dydRrk½ rFkk 2013 lh vkj ,y ts 610 ¼jktLFkku½ voyafcrA ¼iSjk 10 ,oa 13½

ORDER

1. Petitioner has filed the present petition being aggrieved by the order dated 24.9.2020 passed by the Sub-Divisional Magistrate in the exercise of the power under section 97,98 of the CrPC whereby the custody of respondents No.5 & 6 have been handed over to respondent No.4.

The facts of the case in short are as under :

2. The marriage of petitioner and respondent No.4 solemnized in the year 2003 and the petitioner gave birth to twin sons i.e. respondents No.5 & 6 in the year 2005. According to the petitioner, she has started living separately from her husband respondents No4 and since birth, respondents No.5 & 6 are living with her. Because of some matrimonial dispute with respondent No.4 petitioner has left the matrimonial house along with respondents No.5 & 6 and since then they have been brought up and educated by her. Although respondent No.4 used to visit and meet them the petitioner took entire liability for the betterment of future

3. Respondent No.4 approached the Sub Divisional Magistrate by way of an application under section 97 of the CrPC seeking custody of respondents No.5 & 6. The Sub-Divisional Magistrate without any authority has entertained the application and issued a search warrant of respondents Nos. 5&6. In compliance of the search warrant, the police procured them from her house to produce respondents No.5 & 6 before Sub Divisional Magistrate. No notice was issued to the petitioner in the aforesaid case, after recording the statements of respondents No.5 & 6 and vide order dated 14.9.2020 permitted respondent No.4 to keep respondents Nos. 5&6 with them, hence the present petition before this Court.

4. After notice the Sub Divisional Magistrate has filed the reply by submitting that respondent No.4 has applied under section 97 CrPC, in which a search warrant was issued on 11.9.2020. In compliance of the said search warrant the police station Narsinghgarh has produced respondents No.5 & 6 in the Court and thereafter he took their statements in which they have categorically stated and shown their willingness to go with respondent No.4, father. Upon the said statement respondent No.3 has passed the impugned order dated 14.9.2020, hence there is no illegality in it and the petition is liable to be dismissed.

5. Shri A.K.Saxena, learned counsel appearing on behalf of respondents No.4 to 6 has argued in support of the impugned action of Sub-Divisional Magistrate by submitting that the respondents No.5 & 6 were being ill-treated by the petitioner, therefore, looking to the welfare of the children learned SDM has rightly handed over their custody to the respondent No.4. The power has rightly been exercised under section 97 CrPC in which no interference is called for in a writ petition filed under Article 226 of the Constitution of India. It is further submitted that the paramount consideration of the Court should be the welfare of the children while deciding their custody and the respondents No.5 & 6 without any pressure has willingly deposed before the SDM that they are not interested in residing with the petitioner, hence no interference is called for and the petition is liable to be dismissed.

6. Facts of the case are not in dispute to the extent that the petitioner and respondent No.4 are husband and wife but they are living separately for the last so many years and after separation, respondents No.5 & 6 were living with the petitioner till the impugned order was passed by the SDM.

7. Respondent No.4 has filed an application under section 97 & 98 CrPC alleging that he used to live with the petitioner in Champi Mohalla, Narsinghgarh and in the year 2011 after creating a dispute she took him alongwith respondents No.5 & 6 with her to Madhusoodangarh where they have started living on a rented house. The petitioner's behaviour remained cruel towards respondents No.4 to 6 and compelled him to leave the house. He has received a call from respondents No.5 & 6 that the petitioner is behaving cruelly with them

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