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HIGH COURT OF CHHATTISGARH, BILASPUR

CRMP No. 1491 of 2021

•

Gajendra Markam S/o Shri Ramji Markam, Aged About 43 Years R/o Village

Doma, Thana Bhyakhara, District Dhamtari (Chhattisgarh), District : Dhamtari,

Chhattisgarh

---- Petitioner

Versus

1. State of Chhattisgarh Through The District Magistrate Dhamtari, District :

Dhamtari, Chhattisgarh

2. Sub Divisional Officer Revenue Kurud, District : Dhamtari, Chhattisgarh

3. Smt. Hemlata Markam W/o Gajendra Markam, Aged About 34 Years R/o

Village Nayapara Rajim, Tahsil Abhanpur, District : Raipur, Chhattisgarh.

Respondents

For Petitioner

:

Mr. H.A.P.S. Bhatia, Advocate.

For Respondents No.1 & 2 :

Ms. Akshara Amit, Panel Lawyer.

For Respondent No.3

:

Mr. Anchal Matre, Advocate.

Hon'ble Shri Justice Radhakishan Agrawal

Order On Board

17-11-2022

Heard.

1. This petition is filed under Section 482 of Cr.P.C. by the petitioner /

father against the order dated 15.12.2021 passed by the Additional

Sessions Judge (FTC) Dhamtari, in Criminal Revision No.27/2021

whereby the order passed by the Sub-Divisional Officer Kurud, in

Revenue Case No.25/Section 98/2020-21 directing the petitioner to hand

over the custody of child to the respondent was affirmed and the revision

was dismissed.

2. Relevant facts in brief are that petitioner and respondent No.3 are

husband and wife. After their wedlock, baby boy was born on

14.12.2015. Application under Sections 97, 98 of CrPC before the Sub

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Divisional Magistrate was filed by the wife for issuance of search warrant

and production of minor child Reyan on the pleading that petitioner used

to torture her and she was subjected to physical and mental cruelty. It

was alleged by the wife that on 27.07.2021 the husband came to

Nayapara, Rajim, and again demanded money, which was refused by

wife/respondent No.3, on which, he forcibly took away the Child Reyan

to village Doma. Reyan was suffering from Pneumonia. When

respondent No.3 along with her elder sister Yogeshwari went to Gram

Doma for taking back Reyan where petitioner/ husband was kept Reyan

in a closed room and refused to meet her. The matter was reported by

wife in Police Station Makara.

3. Learned counsel for the petitioner submits that learned Sub-Divisional

Officer has acted against the law and passed the order without

jurisdiction as the Guardianship of the child cannot be decided by the

SDM. Proceedings u/s 97, 98 of CrPC are not maintainable against the

father of the child.

4. Learned counsel for the respondent No.3 submits that respondent No.3

has filed application under Sections 97, 98 of CrPC before SDM, Kurud

wherein prayer was made by wife before SDM for production of the child.

The Sub Divisional Officer Revenue in purported exercise of power

under Section 97 of CrPC has passed the order directing the petitioner

to hand over the custody of child to the wife.

5. It is settled law that Sub Divisional Officer having no jurisdiction to decide

the Guardianship of a minor child or to issue search warrant against

natural guardian mother or father. As in the present case the minor is in

custody of the father, the Sub Divisional Officer has committed an error

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of law in directing the petitioner directly to hand over custody of child to

the respondent No.3 mother.

6. It is not disputed that petitioner is father and respondent No.3 is mother

of child Reyan. Presently, age of Reyan is 7 years. Section 6 of the

Hindu Minority and Guardianship Act, 1956 reads as under:

“The natural guardianship of a legitimate child vests in the father. A

mother can be natural guardian of her illegitimate children, but when it comes

to her children begotten from a marriage, she can be their natural guardian

only after the father”

On bare reading of Section 6, it is clear that under the Hindu law in case

of boy or unmarried girl, the father is the natural guardian and after the

father, it is