Sr. No. 104

HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

Reserved on : 03.07.2021

Pronounced on: 08.07.2021

Crl R No.7/2021

CrlM No.547/2021

Raksha Devi

…Applicant(s)/Petitioner(s)

Through: Mr. O. P. Thakur, Sr. Advocate

with Ms. Pummy Thakur,

Advocate.

v/s

Union Territory of J&K and another

…. Respondent(s)

Through: Mr. Jamrodh Singh, GA.

CORAM: HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

ORDER

1.

This revision petition has been filed against the order passed by the

learned Principal Sessions Judge, Ramban whereby the application of the

petitioner seeking custody of her child (son) has been rejected holding that the

court had no jurisdiction and such question cannot be considered in these

criminal proceedings as the civil proceedings for appointment as guardian of

the minor are pending and the petitioner is pursuing the said application under

the Guardians and Wards Act, 1890 before the said court and in case this

application is allowed in these proceedings, the proceedings initiated under

Section 7 of the Guardians and Wards Act shall become infructuous. This order

of the trial court has been called in question in this revision petition and the

2

Crl R No.7/2021

question for determination in this revision is whether this revision petition is

maintainable and has any merit.

2.

From the facts of this case, it emerges that with regard to the death of

the husband of the petitioner, FIR No. 14/2016 was registered under Section

279/304-A RPC against the petitioner and in respect of the said incident,

charge sheet has also been field before the Principal Sessions Judge, Ramban.

3.

The son of the petitioner is with respondent No.2. The respondent

No.2 Isher Singh had filed an application under Section 7 of the Guardians and

Wards Act against the petitioner for appointing him as guardian of said minor

to which objections have been filed by the petitioner herein and the parties

have been asked to produce evidence. The petitioner as well as respondent is

being represented by their counsels. The evidence of petitioner is going on.

the petition is still pending. The trial court in the proceedings under Section 7

of the Guardians and Wards Act which is being contested by the petitioner

herein has to determine whether the respondent who is the petitioner before the

trial court is entitled to be appointed as a guardian and whether the minor could

be kept in his custody. The petitioner herein is contesting the said petition and

it is in those proceedings where the question of appointment of guardian and

the custody of the child can be considered and decided. While such

proceedings are pending consideration, in case application seeking custody in

these proceedings is allowed and minor is ordered to be handed over to the

petitioner, the proceedings under the provisions of the Guardians and Wards

Act would become infructuous. Such question cannot be as such determined in

these proceedings.

4.

Section 12 of the Guardians and Wards Act, 1890 also deals with the

power of the court where the proceedings under the Act are pending to make

3

Crl R No.7/2021

interlocutory order for production of minor and interim protection of person

and property and as per the said section, the court can make such order for the

temporary custody and protection of the person or property of the minor as it

thinks fit.

5.

Issues have been raised in the petition by the petitioner (respondent

No.2 herein) for appointing him as a guardian of the minor in exclusion of the

petitioner (herein) and as per the record on file, the petitioner herein is facing

the charge for the murder of her husband regarding which mention has been

made in the order impugned also. The question of custody and appointment of

guardian can be taken into consideration only in the proceedings under