J&K&L High Court: Father's Custody of Minor Child Not 'Illegal Confinement' Under CrPC Section 97

Srinagar: In a significant ruling on child custody disputes, the High Court of Jammu & Kashmir and Ladakh has clarified the limited scope of Section 97 of the Code of Criminal Procedure (CrPC) in matters concerning a minor child's custody with their father.

Justice SanjayDhar , in an order dated February 12, 2024, set aside an order passed by the Judicial Magistrate 1st Class, Sumbal, which had issued a search-cum-production warrant under Section 97 CrPC for a minor son in the custody of his father. The High Court held that custody of a minor child with his father cannot, under any circumstances, be termed as "illegal confinement amounting to an offence," which is a prerequisite for invoking Section 97 CrPC.

Case Background

The case stemmed from a marital dispute between the petitioner-father, Showkat Ahmad Mir , and the respondent-mother, Nighat Begum . Married in 2015, the couple had a minor son. Amidst strained relations, which saw the wife filing a Domestic Violence Act petition and a suit for restitution of conjugal rights, and the husband filing a criminal complaint against his in-laws, the mother filed an application before the Judicial Magistrate under Section 97 CrPC.

She sought the production of their minor son, who was in the father's custody, alleging apprehension for his life and that his confinement was intended to prevent him from receiving his mother's love and affection, causing mental and psychological suffering.

Magistrate's Decision and Challenge

Based on the mother's application, the Judicial Magistrate issued a search-cum-production warrant, observing that the child required the mother's care and that the father was not a proper substitute. The Magistrate concluded that in the circumstances, the confinement amounted to an offence.

The father challenged this order before the High Court, arguing that his custody as the natural guardian could not be deemed illegal or an offence. He contended he was providing good care and that the Magistrate's order was passed without proper application of mind.

The mother contested the petition, detailing her allegations of harassment and neglect against the father and asserting that she, as the mother, was best suited to care for the young child's welfare.

High Court's Analysis on Section 97 CrPC

Justice Dhar meticulously examined the provisions of Section 97 CrPC, which allows a Magistrate to issue a search warrant if there is "reason to believe that any person is confined under such circumstances that the confinement amounts to an offence."

The Court emphasized that two essential conditions must be met for the provision to apply: 1. A person must be confined. 2. The confinement must amount to an offence.

Reviewing the Magistrate's order and the mother's application, the High Court noted that the primary concern appeared to be the welfare of the child. However, the Court clarified that while child welfare is paramount in custody matters, Section 97 CrPC has a distinct purpose. Its application is contingent upon the confinement being illegal and constituting a criminal offence.

The judgment explicitly stated, "The custody of a child with his father can, in no circumstances, be termed as illegal confinement amounting to an offence as the father happens to be the natural guardian of a minor child."

Relying on Precedent

The High Court referenced its own judgment in Shameem Ahmad vs. Ashiya Begum, 2016 (3) JKJ 128 , which held that a father's custody of minor children does not per se constitute an offence allowing invocation of powers equivalent to Section 97 CrPC.

The Court also cited the Supreme Court's observations in Ramesh vs. Laxmi Bai, (1998) 9 SCC 266 , where the apex court had deemed an order of custody passed under Section 97 CrPC for a child living with his own father as "untenable," stating that Section 97 CrPC is prima facie not attracted to such facts.

Decision and Implications

Based on the analysis and judicial precedents, the High Court concluded that the Magistrate's order directing the production of the minor child from the father's custody was unsustainable in law as the father's custody did not amount to illegal confinement or an offence.

Consequently, the petition was allowed, and the impugned order of the Judicial Magistrate dated June 20, 2022, was set aside.

The High Court noted that during the pendency of the petition, interim custody of the child had been given to the mother. The judgment clarified that the question of permanent custody of the minor child is a separate matter and the parties are at liberty to approach the competent court under the Guardians and Wards Act for appropriate orders in that regard. The ruling underscores that custody disputes, particularly concerning lawful custody by a natural guardian like a father, fall outside the purview of Section 97 CrPC, which is meant for rescuing persons illegally confined under circumstances constituting a crime.