SCR.A/2360/2007 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2360 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================= = CHIRAG KIRITBHAI SHAH & 1 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance : MS PAURAMI B SHETH for petitioners MR IM PANDYA, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR VIRAT POPAT for MR VIJAY J SHAH for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 25/03/2008 ORAL JUDGMENT 1. Rule. Mr.I.M.Pandya, learned Additional Public Prosecutor SCR.A/2360/2007 2/28 JUDGMENT waives service of notice of rule on behalf of respondent No.1 – State of Gujarat and Mr.Virat Popat, learned advocate waives service of notice of rule on behalf of respondent No.2. 2. Having regard to the facts of the case and with the consent of the learned advocates for the parties, this matter was taken up for final hearing. 3. The facts as emerging from the record of the case are that the petitioner No.1 and respondent No.2 entered into wedlock on 26.5.2002. It appears that the family of the petitioners had owned two apartments one at Sangeeta flats and another at Vardhaman Flats. After their marriage the respondent No.2 and petitioner No.1 were residing at Sangeeta Flats. Subsequently due to her pregnancy, the respondent No.2 had gone to her parental home, where she gave birth to a son viz. the minor child Shalin on 3rd March, 2003. According to the respondent No.2, she was subjected to physical violence after her marriage due to which she was forced to leave her matrimonial home on several occasions. Lastly, on 19th October, 2006 the petitioner and his brother left her and her son Shalin at her parental home, after which they were residing at her parental home for a period of seven months till 28th May, 2007. Thereafter, the petitioner No.1 had apologized and after settling the matter, taken the respondent No.2 and their son to his house. Thereafter they were residing at Vardhaman flats along with the other family members till 17th June, 2007. On 18th June, 2007 the petitioner and the respondent No.2 along with SCR.A/2360/2007 3/28 JUDGMENT their minor son, shifted to Sangeeta flats and started residing there. However, on 19th June, 2007, the petitioner No.1 forcibly took away the minor child Shalin from the respondent No.2 and went away to Vardhaman Flats. Thereafter, the respondent No.2 had called her mother and both of them were residing at Sangeeta flats. According to the respondent No.2, the minor child Shalin is studying in H.B. Kapadia School and that pursuant to an application made by the petitioner No.1, the school authorities were not permitting her to meet him. It is also the case of the respondent No.2 that the petitioners have brainwashed the minor child to such an extent that he starts crying as soon as he sees her. Therefore, on 13th July, 2007, the respondent No.2, moved an application before the learned Metropolitan Magistrate, Court No.22, Ahmedabad under the provisions of section 97 of the Code of Criminal Procedure, 1973 (the Code) praying for issuance of a search warrant against the petitioner herein. 4. It appears that subsequently the respondent No.2 has filed an application before the Family Court, Ahmedabad on 9th August, 2007 under the provisions of the Hindu Minority & Guardianship Act, 1956 and the Guardian and Wards Act, 1890 for custody of the minor child. On 27th August, 2007 the petitioners moved an application before the learned Metropolitan Magistrate to the effect that as the respondent No.2 had instituted proceedings for the custody of the minor child before the Family Court, the proceedings under section 97 of the Code should not be proceeded with. By an order dated 13th September, 2007 SCR.A/2360/2007 4/28 JUDGMENT the learned Metropolitan Magistrate rejected the application made by the petitioners and further ordered the petitioners to hand over the custody of the minor child to the respondent No.2 (original applicant) on the ground that the respondent No.2 being the mother, was entitled to the custody of the minor child. 5. The petitioners carried the aforesaid order in revision before the City Sessions Court, Ahmedabad by way of Criminal Revision Application No.345 of 2007. The learned Additional City Sessions Judge, Court No.8, Ahmedabad vide the impugned order dated 29th November, 2007 rejected the Criminal Revision Application and confirmed the order passed by the learned Metropolitan Magistrate, which has given rise to the present petition. 6. Heard, Ms. Paurami Sheth learned Advocate for the petitioners, Mr. I.M. Pandya learned Additional Public Prosecutor for the respondent No.1 State of Gujarat and Mr. Virat Popat learned Advocate for the respondent No.2. 7. Ms. Paurami Sheth learned Advocate for the petitioners, has vehemently assailed the impugned orders. It is submitted the orders passed by both the courts below are contrary to the provisions of section 97 of the Code. It is contended that under the provisions of section 97 of the Code, the Court has the power and jurisdiction to issue search warrant for a person wrongfully confined within the limits of the local jurisdiction of the said court. Therefore, the Courts below have erred in directing the petitioners to hand over the custody of the minor child to SCR.A/2360/2007 5/28 JUDGMENT the respondent No.2- mother as the same is not contemplated under the provisions of section 97 of the Code. 8. It is further submitted that as and when they were called to remain present before the Court, they have remained present and have never denied having custody of the minor child. In the circumstances, the ingredients of section 97, viz. wrongful confinement are not satisfied. It is argued that the learned Additional City Sessions Judge has erred in law in holding that every person is entitled to speedy remedy available under law for custody of the minor child, without taking into consideration that the provisions of section 97 of the Code do not empower the Court below to make orders regarding the custody of the child. That section 97 only prescribes for issuance of search warrant and once it is found that the minor child is not wrongfully confined in the custody of the petitioner No.1 who is his father and legal guardian, the power and jurisdiction under section 97 of the Code comes to an end. It is submitted that the impugned orders passed by the Courts below being contrary to the facts and evidence of the case and settled legal position are required to be quashed by this Court. 9. It is urged that as the minor child was in the custody of the petitioner No.1 who is his father, he cannot by any stretch of imagination be said to be under wrongful confinement so as to attract the provisions of section 97 of the Code. In support of her submissions the learned Advocate for the petitioner has placed strong reliance SCR.A/2360/2007 6/28 JUDGMENT upon the decision of the Supreme Court in the case of Ramesh v. Laxmibai, (1998) 9 SCC 266. 10.On the other hand Mr. Virat Popat has defended the impugned orders with equal vehemence. Referring to the application under section 97 of the Code made by the respondent No.2 it is pointed out that pointed out that all throughout the minor child had been in the custody of the respondent No.2 and had been forcibly taken away from her custody, to submit that in the circumstances the minor child in fact was illegally confined by the petitioners as envisaged under the provisions of section 97 of the Code, hence the Court was duly empowered to issue warrant under section 97 of the code for restoring the custody of the child to the mother. It is submitted that it is not in every case that the father’s custody of the minor child cannot be said to be unlawful confinement. That it would depend upon the facts of each individual case. It is argued that the decision of the Supreme Court in the case of Ramesh v. Laxmibai (supra) does not lay down any blanket proposition to suggest that in no case the custody of the child with the parent can be said to be unlawful confinement in terms of section 97 of the Code. It was urged that the respondent No.2 being the mother is in a better position to take care of the child of tender age than the father. Referring to various decisions of the Supreme Court it was urged that it is settled legal position that in case of dispute between father and mother regarding the custody of their child, the paramount consideration is the welfare of the child and not the legal rights of the parties. It is submitted that SCR.A/2360/2007 7/28 JUDGMENT both the Courts below have after considering the material on record concurrently found that it would be in the interest of the minor child if the custody is handed over to the mother, hence, no intervention is warranted at the hands of this Court 11.In support of his submissions, the learned advocate for respondent No.2 has placed reliance upon the following decisions : [a] The decision of the Supreme Court in the case of Anjali Anil Rangari v. Anil Kripasagar Rangari, (1997)10 SCC 342. [b] The decision of the Supreme Court in the case of Syed Saleemuddin v. Dr.Rukhsana, (2001)5 SCC 247 has been cited for the proposition that, in an application seeking a writ of Habeas Corpus for custody of minor children, the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that the present custody should be changed and the children should be left in the care and custody of somebody else. [c] The decision of the Supreme Court in the case of Rajesh K. Gupta v. Ram Gopal Agarwala, (2005)5 SCC 359 has been cited for the proposition that, in case of dispute between the mother and father regarding the custody of their child, the paramount consideration is the welfare of the child and not the legal right of either of the SCR.A/2360/2007 8/28 JUDGMENT parties. In the said case, the Supreme Court permitted the mother to retain the custody of the child. [d] The decision of a Division Bench of this Court in the case of Surbhi Ravikumar Minawala v. State of Gujarat, 2004(3) G.L.R. 2709 has been cited, wherein this Court had, in the peculiar facts of the said case, while dealing with the Habeas Corpus Petition, directed that the custody of the child be handed over to the petitioner who was the mother of the child. [e] The decision of the Bombay High Court in the case of Sk. Razak v. Riyasathbi and others, 1975 CRI.L.J. 1131 was cited, wherein the Court had found that the learned Magistrate had recorded a subjective satisfaction that there was a confinement of the child which amounted to an offence. In the circumstances, the Court held that the learned Magistrate was justified in passing an order of search warrant and ultimately, in exercising his discretion and passing order as he deemed fit regarding the custody of the child. [f] The decision of the Allahabad High Court in the case of Zahirul Hassan v. State of U.P., 1988 CRI.L.J. 230 was cited, wherein the Court held that the removal of the child by using physical force from the custody of the mother is prima facie a wrongful act, amounting to wrongful confinement. [g] An unreported decision of this Court dated 25th January, 2007 in the case of Chandrakant Mervanbhai SCR.A/2360/2007 9/28 JUDGMENT Patel v. Bhagwatiben Chandrakantbhai Patel, rendered in Special Criminal Application No.1992 of 2006, wherein it has been held as follows : “It may be noted that the father's fitness cannot override considerations of the welfare of the minor children. No doubt, a father is presumed by the statue generally to be better fitted to look after the children - being normally the earning member and head of the family. However, the court has to keep in mind primarily the welfare of the children in determining the question of their custody in the background of all the relevant facts having a bearing on their health, maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The absolute right of parents over SCR.A/2360/2007 10/28 JUDGMENT the destinies and the lives of their children has, in the modern-changed social conditions yielded to the considerations of their welfare as human being so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.” 12.The learned advocate for the respondent No.2 has further submitted that this Court in exercise of powers under Articles 226 and 227 of the Constitution, has inherent jurisdiction to pass orders regarding the custody of the child. It is submitted that, in the facts of the present case, without strictly referring to the provisions of Section 97 of the Code, this Court would try to ensure that true justice is done. It is submitted that the resultant effect of the orders passed by the Courts below is that the child would remain in the custody of the mother. According to the learned advocate, true justice has been done by the Courts below because the mother has been given the custody of the child, who is admittedly less than seven years of age. It is submitted that the Court should also look into the aspect as to what would be the effect of quashing the orders of the Courts below. It is submitted that the mother who has ample time on her hands, is in a better position to take care of her child, and that, unless special disqualification on part of the mother is shown, the child should normally be kept in the custody of the mother. It is urged that this Court, while exercising its SCR.A/2360/2007 11/28 JUDGMENT extra ordinary jurisdiction under Article 226 of the Constitution, would look into the totality of the circumstances and ensure that justice is done, instead of considering the technicalities of the matter. 13.In rejoinder, Ms.Sheth, learned advocate for the petitioner has reiterated that under the provisions of Section 97 of the Code, the learned Magistrate does not have power to issue search warrant when the custody is with the father. It is submitted that none of the decisions cited by the respondents are applicable to the facts of the present case. It is submitted that basically this petition challenging the orders of the Courts below is in the nature of a petition under Article 227 of the Constitution. It is submitted that both the impugned orders passed by the Courts below being contrary to the provisions of Section 97 are null and void, and that the provisions of the Hindu Minority & Guardianship Act, cannot be relied upon for the purpose of granting any relief under the provisions of Section 97 of the Code. It is submitted that the respondent No.2 has initiated proceedings before the competent court for custody of the child, and that appropriate orders can be passed by the said Court. It is submitted that Section 97 of the Code does not confer powers regarding deciding the issue of guardianship. It is argued that the question of paramount interest of the child is yet to be examined and that the provisions of Section 97 of the Code do not come into play as there is no wrongful confinement. It is further submitted that the petitioners are ready and willing to cooperate in the proceedings before the Family Court wherein the SCR.A/2360/2007 12/28 JUDGMENT proceedings for the custody of the child have been initiated by the respondent No.2. It is urged that neither of the Courts below have recorded any finding regarding wrongful confinement of the minor child, in the circumstances, there was no warrant for exercising powers under Section 97 of the Code. 14.In the background of the facts noted hereinabove, the issue that arises for determination is as to whether the minor child Shalin can be said to have been confined under such circumstances that the confinement amounts to an offence. The second issue which arises for consideration is as to whether the Courts below were justified in directing the petitioner to handover the custody of the minor child to the respondent No.2. 15.At the outset, it would, therefore, be necessary to refer to the various decisions upon which reliance has been placed by the learned advocates for the parties so as to examine as to what is legal position in this regard : (i) In the case of Rajesh K. Gupta (supra) the child was with the mother and the father had filed a habeas corpus petition seeking custody of the child. The court held as follows: “It is well settled that in an application seeking a writ of habeas corpus for custody of minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal SCR.A/2360/2007 13/28 JUDGMENT and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of someone else. It is equally well settled that in case of dispute between the mother and father regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties [see Dr. (Mrs.) Veena Kappor v. Shri Varinder Kumar Kapoor, (1981) 3 SCC 92 and Syed Saleemuddin v. Dr. Rukhsana and others, (2001) 5 SCC 247]. It is, therefore, to be examined what is in the best interest of the child Rose Mala and whether her welfare would be better looked after if she is given in the custody of the appellant, who is her father.” (i) In the case of Surabhi R. Minawala (supra) a Division Bench of this court after considering the provisions of section 6 of the Hindu Minority and Guardianship Act, 1956 observed that the legislature in its wisdom has thought it fit for the mother to ordinarily have custody of the child if it is below the age of five years. The Court was of the view that there was nothing extraordinary in the said case which may prompt the court to deviate from the above statutory provision. The Court was of the view that no amount of wealth and ‘mother like love’ can take the place of mother’s care and love for the child. SCR.A/2360/2007 14/28 JUDGMENT (ii) In the case of Syed Saleemuddin (supra) the Supreme Court held as follows: “From the principles laid down in the aforementioned cases it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court.” (iii) In the case of Savitaben Lagharbhai v. Manji Ramji Chavda & Another 1982 (2) GLR 682, wherein the mother had filed a habeas corpus petition seeking custody of the minor children, the Court after considering the question of the welfare of the minor children had directed that the custody of all the three children be handed over to the petitioner. (iv) In the case of Sk. Razak (supra) the Bombay High Court was dealing with a case where the child was residing with the mother and the father took away the child forcibly from her SCR.A/2360/2007 15/28 JUDGMENT custody. The Court held that in the circumstances of the said case, the Magistrate felt that there was a confinement of the child which amounted to an offence. This is the subjective satisfaction of the Magistrate which cannot be lightly interfered with at the revisional stage unless a very strong ground is made out before the Court. Once that position is accepted, then the matter becomes more clear that the Magistrate had no option but to pass an order of search warrant. (v) In the case of Zahirul Hassan (supra) the Allahabad High Court was dealing with a case where the father forcibly took the child aged 1 ½ years from the custody of the mother. The mother therefore, moved an application under section 97 of the Code of Criminal Procedure against the father. The Court observed as follows: “In my opinion, it is revolting to judicial conscious and modern sense of justice and fair play that a person who has lawful custody of the minor should be deprived of such a custody by crude method as has been adopted by the husband in the present case particularly when such a forcible removal by the husband has no sanction under the law. Removal of the child by using physical force from the custody of the mother is prima facie a wrongful act, SCR.A/2360/2007 16/28 JUDGMENT more so when the child is of a tender age of 1 ½ years only. This act on the part the husband of placing the child beyond the reach of the mother in such circumstances in my opinion in itself amounts to wrongful confinement.” This Court is in full agreement with the view taken by the Bombay High Court and the Allahabad High Court in the decisions referred to hereinabove. (vi) In the case of Purushottam Wamanrao Thakur v. Warsha w/o Narendra Thakur 1992 CRI.L.J. 1688, the Bombay High Court placed reliance upon a decision of the Madhya Pradesh High Court herein the Court had held that “The general principal in matters relating to the custody of a minor is well settled that the paramount consideration is the welfare of the minor and not the legal right of this or that party. The Court referred to the provisions of section 6(a) of the Hindu Minority and Guardianship Act, 1956, which provides that the custody of a minor who has not completed the age of five