GANGAMMA v. VISWANATHA J. SALIAN — 1983 DIGILAW 283 (KAR)

N. D. VENKATESH, J. ( 1 ) THIS is an application under S, 482 of the code of Criminal Procedure, 1972 (the Code ). The Order dt. 29-3-1982 of the Additional Munsiff and JMFC udupi. , in Misc. Case No. 197 of 1981 on his file and the order dt. 10-1-1983 of the Sessions Judge, Mangalore in cr. R. P. No, 35 of 1982 on his file confirming the order of the JMFC are under challenge in this petition. ( 2 ) PETITIONERS 2 and 3 are the son and daughter respectively of the 1st petitioner Gangamma. The 1st respondent Vishwanath J. Salian (Viswanath) is her son-in-law having married her daughter Vasanthi. He had married her on 18-1-1979 at udupi. Giving birth to twins (both male) on. 11-12-1979 she died in a hospital at Bombay. wherein, in those days, she used to reside with viswanath. Since the babies are too young for being looked after by the father, Gangamma and her son Shankara karkera the 2nd petr. , brought them to their place at Udupi Taluk. Since then the two babies are with their grand-mother and the two other petitioners who all constitute a joint family. Of late Viswanath has come to feel that he should have the custody of his children and that it was not desirable to leave them with their grand-mother and the other members of the family. In the meanwhile the grand-mother and the aunt of the children (petitioners 1and 3) have developed a great attachment to them. They are reluctant to part with the company of the children. The very idea of sending them to their father makes them terribly sad and unhappy. Sensing this attitude of the petitioners and feeling frustrated in his attempts to obtain the custody of his chidren he filed the application in the trial Court in Misc. Case No. 187/81 under S. 97 of the code. Instead of issuing a warrant, as contemplated therein, the learned magistrate called upon these petitioners, who were respondents before him, to showcause as to why an order as sought for should not be issued to them. Having appeared these petitioners filed their objections opposing the claim. Parties also filed their affidavits. Case No. 187/81 under S. 97 of the code. Instead of issuing a warrant, as contemplated therein, the learned magistrate called upon these petitioners, who were respondents before him, to showcause as to why an order as sought for should not be issued to them. Having appeared these petitioners filed their objections opposing the claim. Parties also filed their affidavits. After hearing then the Court below by its order referred to above, directed these petitioners to produce the two children before it on 8-4-1982 at 11 a. m. with a direction to the first respondent also to be present in court on that day. In the view of the learned Magistrate the 1st respondent (petitioner before him), being the father was entitled to the custody of his children. The learned sessions Judge has confirmed the order of the learned Magistrate as stated above. ( 3 ) CHALLENGING the order of the trial court the learned Counsel for the petitioners made mainly two submissions. His first submission is that the averments of Viswanath in his petition did not attract S. 97 of the Code and the court below has erred in invoking that provision at his instance. His second submission is that, even otherwise, the court below had committed grave procedural irregularities in its enquiry and therefore the entire proceeding including the order in question is vitiated and therefore deserves to be struck down. ( 4 ) ON the other hand, it was argued by the learned Counsel for respt.-1 that this being a case of a father who has been denied the company of his children, to which he is legitimately entitled to, the validity of the impugned order cannot be questioned on any technical ground or procedural irregularity even if such things exist. He also submitted that if the question involved is examined as it ought to be, in its broad perspective, no interference in the impugned order is called for. He also submitted that if the question involved is examined as it ought to be, in its broad perspective, no interference in the impugned order is called for. ( 5 ) S. 97 of the code reads thus :"97 Search for Persons Wrongfully confined-It any District Magistrate sub-Divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant and the person to whom such warrant is directed may search for the person so confined ; and such search shall be made in accordance there with, and the person, if found shall be immediately taken before a Magistrate who shall make such order as in the circumstances of the case seems proper. " ( 6 ) IN trying to substantiate his first sub-mission counsel for the petitiones argued that there was no reason to the learned Magistrate to believe that the children were under such circumstances that "that confinement amounted to an offence". The children, he argued were after all with the members of the family of their mother ; that it was in their best interest that they should be looked after by their grand-mother and aunt that having regard to their age and background, their stay with their father at Bombay was not desirable and that the court below ought to have taken all these facts into consideration before invoking S. 97 of the Code. ( 7 ) THOUGH the parties are governed by Aliasanthana law, both the guardian and Wards Act, 1890 (the Act of 1890) and the Hindu Minority and guardianship Act, 1956 (the Act of 1956) apply to them. Under S. 6 of the act of 1956 in case of a Hindu minor boy or minor unmarried girl the father, and, after him, the mother are the natural guardians. It is also provded that the custody of the minor, who has not completed the age of five shall ordinarily be with the mother. Under S. 24 of the Act of 1890" a guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires. " ( 8 ) SINCE, in this case the mother is not alive. Under S. 24 of the Act of 1890" a guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires. " ( 8 ) SINCE, in this case the mother is not alive. , the father is entitled to the custody of the children though the children have not completed the age of five years. ( 9 ) IN the circumstances of the case if anybody else have the children in their care and custody they can retain them only with the consent of the father, their guardian. As long as he remains as a guardian, without his consent, none else including the grand-mother and their aunt, have any right to keep the children in their custody. As they say, even if the grand-mother and the aunt had taken away the children immediately after their mother's death to nurse them and look after them, that removal it has to be presumed, was with the consent, express or implied, of their (children) father. Keeping them against his wish and not returning to him, when he demands, amounts to keeping the children in wrongful confinement. ( 10 ) S. 97 of the Code can be invoked if the Magistrate has reason to believe that a party "is confined under such circumstances that the confinement amounts to an offence. " ( 11 ) IN the instant case both the Courts below have rightly taken note of the observations of the supreme Court in Gohar Begum v. Suggi Alias Nazma Begum ( AIR 1960 sc 93 ) and that of the Kerala High court in Pareekutty v. Avisakutty (1978 kerala Law Times 33 ). In Gohar begum's case the facts were her mother's sister (aunt) Kaniz Begum had taken her, Gohar Begum's, minor child, Anjum, presumably with her consent and was keeping the child with her. After a year or so mother, gohar Begum asked her aunt to return the child. Aunt, Kaniz Begum, refused to restore the custody of the child to the Child's mother. After a year or so mother, gohar Begum asked her aunt to return the child. Aunt, Kaniz Begum, refused to restore the custody of the child to the Child's mother. Mother Gohar Begum, therefore, applied under S. 491 of the Code of criminal Procedure, 1898 (Old Code) for the custody of her child in the high Court of Bombay, Gohar Begum had challenged in the above case, the order of the Bombay High court dismissing her application. Allowing her claim the Supreme court observed at paras 7 and 8 as follows:"on these undisputed facts the position in law is perfectly clear. Under the Mohammedan Law which applies to this case, the appellant entitled to the custody of Anjum who is. her Illegitimate daughter, no matter who is the father of anjum is. The respondent has no. legal right whatsoever to the custody of the child. Her refusal to make over the child to the appellant therefore resulted In an illegal detention of the child within the meaning of S. 491. This position is clearly recognised in the English cases concerning writs of habeas corpus (or the production of infants. In R. v. Clarke (1857) 7 El. and b1. 186: 119 ER 1217 Lord Campbell, C. J. , said at p. 193 : 'but with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian ; and when delivered to him, the child is supposed to be set at liberty". The Courts in our country have consistently taken the same view. For this purpose the Indian cases hereinafter cited may be referred to. The terms of S. 491 would clearly be applicable to the case and the appellant entitled to the order she asked. We therefore think that the learned Judges of the High Court were clearly wrong in their view that the Child Anjum was not being illegally or improperly detained. The learned Judges have not given any reason in support of their view and we are clear in our mind that view is unsustainable in law. . ' though that was an application under s. 491 of the Old Code, observations referred to above have a considerable bearing over this case. The learned Judges have not given any reason in support of their view and we are clear in our mind that view is unsustainable in law. . ' though that was an application under s. 491 of the Old Code, observations referred to above have a considerable bearing over this case. In Pareekutty's case (2) (supra) the learned judge of the Kerala High court is also of the view that keeping the child beyond the reach of the person who is entitled to the custody would amount to wrongful confinement. ( 12 ) 491 of the Old Code provided for issuance of directions in the nature of habeas Corpus, also In the case of "a person illegally or improperly detained in public or privete custody" (S. 491 (1) (b) In Gohar Begum their Lordships observe that the Act ef the aunt in not returning the child to the mother with whose consent (may be impliedly) she had taken the child amounted to an illegal detention within the meaning of clause (b) of S. 491 (1) of the code referred to above. The observations of Lord campbell, C. J. , in R. v. Clarke which have been approvingly referred to by the Supreme Court, may also be noted. According to Lord Campbell, c. J. such detention of a child amounts to unlawful detention, but when delivered to the guardian the child is supposed to be set at liberty. Since the child is supposed to act through its guardian, if the wish of the guardian to move the child away from a place or a situation to another place or situation of his choice is thwarted or prevented that amounts to "wrongful" restraint"' within the meaning of s. 339 of the I. PC. and is punishable as an offence under S. 340 thereof. To such a case S. 97 of the Code is clearly attracted. In his application in the trial Court Viswanath has stated that his several attempts to get back his children had not yielded any result and that his mother-in-law and her people were refusing to return the children to him. Since there was this prima facie mateial on record the learned Magistrate cannot be said to have committed any error in his decision to hold an enquiry on that application. Since there was this prima facie mateial on record the learned Magistrate cannot be said to have committed any error in his decision to hold an enquiry on that application. He cannot also be found fault with for direction he has issued to gangamma and her people to produce children in court before returning them to the custody of their father perhaps, he wanted to a scertain as to whether in the circumstances, it was in their best interest. ( 13 ) THE learned Counsel for the petitioners submitted that in a case like this, the welfare of the minor children being of utmost importance criminal court, which normally would not be in a position to probe into this aspect, should not have proceeded under S: 97 of the Code, and, on the other hand, should have directed the father, Viswanath to obtain appropriate orders by filing a separate application under the Act of 1890. True, viswanath could have approached a proper forum with an application under that Act. It all depends upon the facts of each case. In the light of the facts of particular case if the cri. minal court feels that it should not proceed under S. 97 of the code but should direct the party to take recourse to other appropriate remedies, it is open to it to say so. However, in the instant case, it has come on record that the children were about 3 years old that father Viswanath was a person not apparently disqualified to have the custody of his children, and therefore the court's action In proceeding with the enquiry on the application cannot be questioned. As already stated, the learned Magistrate, before passing further orders, wanted to hear both sides, and that is also a step, according to me, in the right direction in a case like this. If Gangamma and her people are apprehensive of the safety of these children at the hands of their father it is open to them to take such action as they deem, fit. After considering all as pects of the matter I feel that this is not a fit case in which this court should interfere with the findings of the courts below. ( 14 ) THEREFORE, this petition dismissed. --- *** --- .