(1) APL 74/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Amk CRIMINAL APPLICATION NO. 74 OF 2011 Jivanadevi Yogendranath Adhar & Anr. .. Applicants Vs. Vimalkumar Dayaram Manake (Roy) & Anr. .. Respondents Mr. Rahul D. Motkari for the Applicants. Mr. Girish R. Agrawal for Respondent No.1. CORAM : MRS. ROSHAN DALVI, J. Date of reserving the Order : 17 th August, 2011. Date of pronouncing the Order : 25 th August, 2011. ORDER 1. The Applicants are grandparents of a minor child Niyo. The Respondent is his father. The Applicants have challenged the order of the learned Judicial Magistrate First Class, Court No.2, Nashik dated 07.12.2010 directing them to hand over the custody of the child to the Respondent herein within 30 days of the order. The custody is not handed over. The Respondent was married to the daughter of the Applicants on 20th February, 2007. The child was born on 22.04.2008. The wife of the Respondent met with certain burns on 14.11.2008. She expired on 15.11.2008. Criminal complaint under Section 498-A, 201, 302 & 304-B of the Indian Penal Code came to be filed by the Applicants against the Respondent. The Respondent handed over his child to the Applicants on 17.11.2008. Criminal prosecution ensued. The (2) APL 74/11 Respondent was acquitted on 28.10.2008. The Appeal against the acquittal has been dismissed by this Court. 2. After his acquittal, the Respondent sent a notice to the Applicants to hand over the child on 09.11.2009. The Applicants have filed a Guardianship Petition claiming to be the guardian of the child on 09.12.2009. Since the Applicants did not hand over the custody of the child to the Respondent, the Respondent took out an application for issue of search warrant in respect of the child under Section 97 of the Code of Criminal Procedure which came to be granted on 07.12.2010. The said order is challenged in this application. 3. The Respondent is the father of the child. Under the Hindu Adoption and Maintenance Act he is the natural and legal guardian of the child. The other guardian of the child was the child’s mother who has expired. The Respondent is, therefore, the only guardian. The Applicants are not the guardians of the child. Of course, in a case where the natural and legal guardian of the child is not fit to be appointed as guardian of the child and due to custody of the child any other person who is fit and proper to so appointed may be appointed as a guardian of such child. 4. This is a case of the death of the wife of (3) APL 74/11 the Applicant by burn injuries. However the Applicant having been acquitted by two Courts cannot be taken to be a person not fit to be the guardian of the child until otherwise shown in the Guardianship Petition. Consequently as such guardian, he would be entitled to apply under Section 97 of the Code of Criminal Procedure and the order granting custody to the legal and natural guardian cannot be faulted. 5. It is contended by the Applicants that part evidence has already been recorded in the Guardianship Petition filed by them and hence that Petition would decide the proper guardian of the child. It is for the Applicants to pursue their application promptly. Until that is done and until a specific case of total unfitness of the father of the child is shown, he cannot be taken to be unfit to be a guardian in view of the aforesaid two orders relating to the death of his wife. Of course, if it is shown even otherwise that he was not a fit and proper person to be the guardian of the child the Applicants would be entitled to the custody of the child and be appointed his guardians. 6. Several Judgments are shown on behalf of the Applicants in Guardianship Petition. These are all on wholly different facts. In the case of Ashok Shankarrao Ghatage Vs. Mahipati Yashwant Khutale AIR 2006 BOMBAY 347, the custody was not given to the father of the child in view of the presence of the (4) APL 74/11 step-mother. In the case of Marotrao s/o Shamrao Pachare & Ors. Vs. Usha Marotrao Pachare 2004(1) Mh.L.J. 253, the mother herself applied for being appointed guardian and for custody. Considering the age of the child and other circumstances she was granted custody. In the case of Zeenath K. V. d/o. Ummer Vs. Kadeeja w/o Late Moosa & Anr. 2007 CRI.L.J. 600, the unlawful detention was seen to be a requisite for ordering the custody under Section 97 of the Code of Criminal Procedure Code. 7. If under the law the father is a natural guardian, the detention of the child by any other person to his exclusion would be unlawful detention. None of these cases would decide the issue in this Petition. The custody would have to be handed over to the father pending the Guardianship Petition. If further the Applicants succeed in proving the unfitness of the father, they may be appointed guardians and may be given custody by the competent Court. Consequently the order of the learned Magistrate cannot be faulted and hence the Criminal Application is dismissed. This order is stayed for 4 weeks. (ROSHAN DALVI, J.)