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2004 DIGILAW 304 (CAL)

ABDUR RAFIQUE v. SAKILA BIBI

2004-04-29

ARUNABHA BARUA

body2004
ARUNABHA BARUA, J. ( 1 ) THIS revisional application under sections 401 and 482 of the Code of Criminal Procedure arises out of an order passed by the learned Sub-Divisional Magistrate, Basirhat, on the 20th July, 1994 whereby the learned Magistrate issued search warrant for producing the minor children in Court in Case No. M. P. 762a of 1992. ( 2 ) THE matter is short and simple. The petitioner in the instant revision is the husband and the opposite party is his wife. Way back on 20. 10. 91, their otherwise peaceful marriage showed signs of cracks when pursuant to a quarrel between husband and wife, the wife, that is, Sakila Bibi, the opposite party here, left her husband's house, that is the house of the petitioner here, along with her brother, in the absence of husband. Allegedly, she also took away at that time all the ornaments given to her by her husband together with Rs. 1,000/- in cash and her garments. Her two minor children were left at her husband's house. According to the petitioner-husband in spite of repeated requests including registered letters by the husband, the wife did not come back to her husband's house. Next year, that is in 1992, the said wife filed a petition under section 97 Cr. PC before the Sub-Divisional Magistrate, Basirhat alleging ill-treatment by the said husband and also alleging second marriage of the husband. In that petition she further alleged that on 12. 4. 92 she was driven away by her husband and his family members. She prayed for a search warrant under section 97 Cr. PC to rescue the two minor children from the custody of her husband. The learned Magistrate issued show cause notice upon the husband and the husband in his show cause notice said that the allegations by the wife were all false, that the wife had no means to provide the two minor children, that it was he that is the husband or the father of the children, who was looking after the welfare of the two children and he had committed no offence of wrongful confinement of his children and that provisions of section 97 Cr. PC were not at all applicable. The case was fixed for hearing of arguments on 20. 7. PC were not at all applicable. The case was fixed for hearing of arguments on 20. 7. 94 but the petitioner-husband failed to appear on that date because of his illness and though an adjournment was prayed for, the Magistrate was pleased to reject it and heard the argument on behalf of the wife, exparte and passed the impugned order dt. 20. 7. 94 whereby he issued the search warrant in question for the production of the minor children from his custody in Court. Being aggrieved at and dissatisfied with the said order of the learned Magistrate, the husband filed this revisional application before this Court. ( 3 ) I have heard at length the arguments placed on behalf of both sides by the learned advocates. ( 4 ) ACCORDING to the leanred advocate for the petitioner-husband the allegations of the wife in moving the application for search warrant in question under section 97 Cr. PC are false. It is further submitted that since the father was having the minor children in his custody at his house there was no question of any "wrongful confinement" and section 97 Cr. PC is plainly not applicable because his action by no means constituted an "offence". It is further submitted by the learned advocate for the husband that the paramount consideration is the welfare of the children and since the father was also a guardian of the children, he was competent to look after the children's welfare and the custody of the children with him being the father cannot be disturbed legally by a search warrant to transfer the custody in favour of the wife. It is further submitted that the matter relating to custody of children in a dispute over the same must be left to be decided by a Civil Court having jurisdiction in a properly constituted guardianship and/or custody proceeding and not by way of any criminal proceeding. Hence, according to the learned advocate for the petitioner the instant revisional application by the husband should be allowed and the impugned order of the learned Magistrate should be set aside. ( 5 ) THE learned advocate for the opposite party-wife has argued that section 97 of the Code of Criminal Procedure is applicable in cases of wrongful confinement, that this confinement may be of the children also. ( 5 ) THE learned advocate for the opposite party-wife has argued that section 97 of the Code of Criminal Procedure is applicable in cases of wrongful confinement, that this confinement may be of the children also. It is further argued that whether the children are wrongfully confined by any of the spouses, the other spouse is entitled to remedy under section 97 Cr. PC. It is further submitted by the learned advocate for the opposite party-wife that in the present case the children of tender age were confined by the petitioner so as to restrain them from going to the lawful custody of the mother that is the opposite party here and that, therefore, the elements of wrongful confinement are present and the criminal law could be made operative in such case and the learned magistrate was fully right and justified in issuing search warrant against the husband on the prayer of the wife for production of the children to be given to the wife that is the mother, who was the natural guardian. In support of his argument the learned advocate for the opposite party-wife referred to a decision in Zahirul Hassan vs. State of U. P. , 1988 Cri. LJ 230. Yet another case of this court in Samir Saha vs. Kalyani Saha, reported in CWN 97, page 760 (per, gitesh Ranjan Bhattacharjee, J.) has been cited. . ( 6 ) I have carefully considered the respective submissions made by the learned advocates of both sides and also have looked through the decisions of the Hon'ble courts referred to above. ( 7 ) IN order to see whether the impugned order of the learned Sub-Divisional magistrate dt. 20th July, 1994 should be sustained or set aside, a close look at the apparent fact of the matter may be decisive. ( 8 ) THIS is how it precisely goes:-admittedly the parties are husband and wife. Allegationwise, there was some quarrel between the husband and wife and the wife left the house of her husband leaving her two minor children with her husband that is the father of the children. Despite repeated requests by the husband the wife did not come back to her husband's house where her children were also there. Allegationwise, there was some quarrel between the husband and wife and the wife left the house of her husband leaving her two minor children with her husband that is the father of the children. Despite repeated requests by the husband the wife did not come back to her husband's house where her children were also there. Instead, she filed a petition under section 97 of the Code of Criminal procedure for recovery of her children by means of search warrant issued by the learned Magistrate. Against this the husband was aggrieved and filed this revisional application for setting aside the impugned order of the learned Magistrate issuing search warrant. ( 9 ) ON this piece of bare facts a few things emerge clear. The minor children belonged both to the husband and wife. The children were being brought up at the house of the husband and who was none other than their own father. There is nothing to show that the children were being ill-treated by the father, that is the husband, who is the petitioner in the instant revision. It is also clear that the husband, that is the father, was just keeping the children with him in his custody and the wife did not choose to take them away also with her when she left the house of the husband. Now, the wife subsequently turned around claiming "recovery" of the children from the custody of their father. The settled position of law is in any proceeding whatsoever, relating to the custody of the child, the welfare of the child is the paramount consideration. ( 10 ) IN the light of what has been discussed above, the obvious question will be where is the "confinement", far less "wrongful confinement" of the minor children by the husband that is the father ? It should be borne in mind that the provision of section 97 Cr. PC is one of emergency. It authorizes the Magistrate to issue search warrant if he has reason to believe about the truth of the allegation, namely, that any person has been confined under such circumstances that the confinement amounts to an offence. If the father keeps his own minor children in his custody for their welfare, how come that it amounts to a wrongful confinement and, to a confinement that must amount to an offence ? If the father keeps his own minor children in his custody for their welfare, how come that it amounts to a wrongful confinement and, to a confinement that must amount to an offence ? It plainly is not and in no way section 97 Cr. PC is attracted. An emergent relief by way of search warrant to take away the children from the custody of such father is plainly neither warranted nor justified. It also hits the jurisdiction of the learned magistrate to make such an order under section 97 Cr. PC because the magistrate can exercise jurisdiction under section 97 of the Code of Criminal procedure only in case of illegal confinement constituting an offence which is what, in this particular case, there is none. ( 11 ) THE two decisions, 1988 Cri. LJ 230 and CWN 97, 760 referred to above by the learned advocate for the opposite party-wife cannot come to the wife's aid. The plain reason is, in Zahirul Hassan, 1988 Cri. LJ 230, the factual position is so different from the one we have at hand. In the Allahabad case (Zahirul hassan) there was the crude method of forcible removal of the child by the father by using physical force from the custody of the mother. It was held that was a wrongful act. But here in our case, there is no overt act on the part of the father in respect of his children at all. Rather, it was the wife (mother) who wanted the children to be taken away from the apparent quiet custody of the children with the father at the father's house, apparently secure again, by means of an emergent search warrant on an application under section 97 Cr. PC. To my mind, on facts it was neither proper, nor justifiable, nor permissible under the law. It at all, since the welfare of the children was a paramount consideration, the mother should have left it to be decided by a Court of competent jurisdiction in a guardianship and/or custody proceedings. That also would have afforded the right scope to determine the dispute with regard to the custody of the children in an appropriate proceeding before a competent Court after proper evaluation of evidence by both sides, if any. Because, to repeat it is always the welfare of the children that must determine their custody-with the father or with the mother. That also would have afforded the right scope to determine the dispute with regard to the custody of the children in an appropriate proceeding before a competent Court after proper evaluation of evidence by both sides, if any. Because, to repeat it is always the welfare of the children that must determine their custody-with the father or with the mother. In this instant criminal revision there is hardly any room to appropriately decide the matter. ( 12 ) HOWEVER, to my mind, on the facts and circumstances as discussed above the impugned order dt. 20th July, 1994 passed by the learned Sub-Divisional magistrate issuing search warrant was plainly not tenable in law and was not justified either. Accordingly this revisional application is disposed of only with the order that the impugned order dt. 20th July, 1994 of the learned Magistrate is hereby set aside. However, the parties are allowed liberty to agitate the matter in an appropriate proceeding with regard to the custody of their children in an appropriately constituted guardianship and/or custody proceeding before a competent forum in accordance with law, if so advised. It is also made clear that any observation and/or opinion of this Court in the course of discussion of this matter need not influence the Court of competent jurisdiction while deciding the case, if any, with regard to the custody of the children of the parties is a duly constituted proceeding on merits. ( 13 ) URGENT xerox certified copy of this order, if applied for, be given to the parties. Revisional application disposed of.