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2007 DIGILAW 95 (CAL)

PARIMAL KANTI PAL v. STATE OF WEST BENGAL

2007-02-15

P.N.SINHA

body2007
( 1 ) THE petitioner has preferred the revisional application under section 482 of the Code of Criminal Procedure (in short the Code) assailing the order dated 3. 3. 06 passed by the learned Additional Sessions Judge, Durgapur in Criminal Motion No. 32 of 2005 thereby affirming the order dated 21. 4. 05 passed by the learned Sub-Divisional Magistrate (hereinafter called the SDM), durgapur in M. P. Case No. 79 of 2005 issuing search warrant under section 97 of the Code for the recovery of minor son of opposite party (in short o. p.) no. 2 from the custody of petitioner. ( 2 ) AT the time of admitting this revisional application this Court granted stay of the order dated 3. 3. 06 passed by the learned Additional Sessions judge, Durgapur and being aggrieved by, and dissatisfied with, the said interim order, the o. p. No. 2 filed one application for vacating the interim order which was registered as CRAN No. 1374 of 2006 and both the revisional application and the application being CRAN No. 1374 of 2006 were heard analogously. I intend to dispose of both the CRR No. 1387 of 2006 and CRAN no. 1374 of 2006 by this common judgment and order. ( 3 ) MR. Milon Mukherjee, the learned Advocate for the petitioner submitted that the petitioner and O. P. No. 2 are husband and wife and their marriage was solemnised on 31. 1. 01. After marriage they were happy and were blessed with a son named Nilanjan @ Soumendu Pal, who was born on 31. 12. 01. Subsequently, the relation between the husband and wife became strained and the O. P. No. 2 used to inflict both physical and mental torture on the petitioner. On 16. 12. 04 the O. P. No. 2 left her matrimonial home and deserted the petitioner as also the minor son and started living at her paternal home. The petitioner made several attempts to take her back but failed. Thereafter, the petitioner filed an application under section 13 of the Hindu Marriage act (in short the H. M. Act) before the Court of the learned Additional District judge, Durgapur on 21. 1. 05 praying for a decree of divorce which was registered as MAT Suit No. 43 of 2005. ( 4 ) MR. Thereafter, the petitioner filed an application under section 13 of the Hindu Marriage act (in short the H. M. Act) before the Court of the learned Additional District judge, Durgapur on 21. 1. 05 praying for a decree of divorce which was registered as MAT Suit No. 43 of 2005. ( 4 ) MR. Mukherjee next contended that in the said MAT Suit the petitioner filed an application under section 26 of the H. M. Act praying for order from the concerned Court relating to custody, welfare, maintenance and education of the minor child and the said application is still pending. On 3. 3. 05 the o. P. No. 2 filed an application before the learned SDM, Durgapur praying for issue of search warrant under section 97 of the Code for recovery of her minor son from the custody of the petitioner and the said application was registered as M. P. Case No. 79 of 2005. The learned Magistrate without considering the objection raised by the petitioner by his order dated 21. 4. 05 issued search warrant for the recovery of the minor son from the custody of the petitioner. Being aggrieved by, and dissatisfied with, the order of the learned Magistrate the petitioner preferred one criminal revision before the learned Additional Sessions Judge, Durgapur which was registered as criminal Motion No. 32 of 2005. The learned Additional Sessions Judge by his order dated 3. 3. 06 dismissed the revisional application and hence this revisional application before this Court. ( 5 ) MR. Mukherjee tried to convince me by submitting that both the learned magistrate and the learned Additional Sessions Judge failed to realise that a search warrant for the recovery of a minor child from the custody of father cannot be issued unless it amounts to illegal confinement constituting an offence. By referring to section 6 (a) of the Hindu Minority and guardianship Act, Mr. Mukherjee contended that the father is the natural guardian, however, according to proviso of that section ordinarily custody of a minor, who has not completed age of five years shall be with the mother. The O. P. No. 2 voluntarily left the matrimonial home deserting the petitioner and the minor child. The child was all along in the custody of petitioner, who is the father and such custody does not become illegal confinement constituting an offence. The O. P. No. 2 voluntarily left the matrimonial home deserting the petitioner and the minor child. The child was all along in the custody of petitioner, who is the father and such custody does not become illegal confinement constituting an offence. The learned Magistrate while issuing the search warrant did not assign any reason for issue of search warrant for the recovery of the child from the custody of father. There was also no observation by the learned Magistrate that the act of the petitioner amounted to illegal confinement constituting offence. There was no indication in the order of the learned Magistrate showing his primary satisfaction for the issue of search warrant for the recovery of the child. The learned Magistrate acted beyond his jurisdiction by issuing search warrant for recovery of the child from the custody of the petitioner. The learned Additional Sessions judge did not look into the matter that the initial order of the learned magistrate issuing search warrant was bad in law and without jurisdiction. Mr. Mukherjee submitted that both the order of the learned Magistrate and the learned Additional Sessions Judge being not in accordance with law should be set aside. The O. P. wife may approach the competent District civil Court under the Guardians and Wards Act for custody of the child and the said Civil Court would be the appropriate forum. In the matter of dispute between husband and wife concerning custody of child who has now completed five years, the order of the Magistrate issuing search warrant cannot be sustained. Mr. Mukherjee also submitted that without filing any specific complaint case, a petition under section 97 of the Code for recovery of a child almost aged five years cannot be supported and had there been any specific complaint case disclosing elements of offence against the husband, the O. P. No. 2 could have submitted the prayer for search warrant. In support of his contention Mr. Mukherjee cited the decisions in Ramesh vs. Laxmi Bai reported in 1999 Cr. LJ 5023, Bidyut Biswas vs. Kuheli Biswas reported in 2002 (2) CHN 450 and Md. Abdur Rafique vs. Mst. Sakila Bibi reported in 2004 (3) CHN 174 . ( 6 ) ON the contrary, Mr. In support of his contention Mr. Mukherjee cited the decisions in Ramesh vs. Laxmi Bai reported in 1999 Cr. LJ 5023, Bidyut Biswas vs. Kuheli Biswas reported in 2002 (2) CHN 450 and Md. Abdur Rafique vs. Mst. Sakila Bibi reported in 2004 (3) CHN 174 . ( 6 ) ON the contrary, Mr. Ashis Kumar Sanyal, the learned Advocate for the O. P. submitted that under section 6 (a) of the Hindu Minority and guardianship Act custody of a minor, who has not completed the age of five years, shall ordinarily be with the mother. Father is the natural guardian no doubt, but the legislature in its wisdom considering the fact of minority of a child aged five years incorporated the proviso thereby mentioning therein that custody in respect of a minor below five years shall ordinarily be with the mother. The purpose behind such enactment was that the mother is the best person to look after the welfare of the child and father cannot afford sufficient time to the needs of the child as well as for the welfare of the child. ( 7 ) MR. Sanyal drew my attention to sections 23, 40, 43 and 340 of the indian Penal Code (in short the IPC) and contended that definitions of these sections in the IPC would clearly establish that the action of the husband petitioner amounted to an offence. The O. P. No. 2 is the mother and the child was below five years when the mother prayed for recovery of the child on the strength of search warrant. In view of the Minority and Guardianship act though father is the natural guardian, the mother has the preferential right in respect of custody of a child below five years in age. In this matter the allegation of the mother before the SDM was that on 18. 12. 04 the husband petitioner drove out her from her matrimonial home taking away her minor son in their custody. As O. P. No. 2 was the mother she is the legal guardian of a male child aged below five years and she has the right to pray for search warrant for the recovery of the child. The conduct of the husband by driving out the O. P. wife on 18. 12. 04 keeping the minor child into his custody amounted to an offence. The conduct of the husband by driving out the O. P. wife on 18. 12. 04 keeping the minor child into his custody amounted to an offence. The learned Magistrate, therefore, did not act illegally by issuing search warrant for the recovery of the minor male child. The learned Additional Sessions Judge also considered the entire matter appreciably and very rightly dismissed the criminal motion filed by the husband. There is no irregularity or illegality in the impugned order passed by the learned Additional Sessions Judge, Durgapur affirming the order passed by the learned SDM. The revisional application accordingly should be dismissed. In support of his contention Mr. Sanyal cited the decisions in vallabhram Ganpatram vs. Emperor reported in AIR 1926 Bombay 122, banarsi Lal vs. Neelam reported in AIR 1969 Delhi 304 and Purushottam wamanrao Thakur vs. Warsha reported in 1992 Cr. LJ 1688 (Bombay ). ( 8 ) MRS. Krishna Ghosh, the learned Advocate appearing for the State submitted that before issuing the search warrant the learned SDM did not express his reasons for issue of search warrant and also did not state in the order that the conduct of the husband petitioner amounted to an offence. Mrs. Ghosh contended that in such a matter the proper remedy lies before the Principal Civil Court of the district and such Court after considering the welfare of the child may pass necessary direction. ( 9 ) I have carefully perused the contents of both the revisional application and the application filed by the O. P. No. 2 praying for vacating the interim order, the certified copy of the impugned orders passed by the learned Courts below, the decisions placed before me and also seriously considered the submissions made by the learned Advocates for the parties. Mr. Sanyal, the learned Advocate for the O. P. No. 2 placed before me certain sections of the ipc and let me quote those sections. Sections 23 of the IPC prescribes what is "wrongful gain" and what is "wrongful loss" and the word "wrongful loss" defines it as the loss by unlawful means of property to which the person losing it is legally entitled. Section 40 describes "offence" and according to the definition of the said section except in the chapters and sections mentioned in clauses (2) and (3) of this section, the word "offence" denotes a thing made punishable by this Code. Section 40 describes "offence" and according to the definition of the said section except in the chapters and sections mentioned in clauses (2) and (3) of this section, the word "offence" denotes a thing made punishable by this Code. Section 43 of the IPC defines "illegal". The word "illegal" means which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to omit. Section 340 of the IPC defines "wrongful confinement". Section 340 prescribes that whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said "wrongfully to confine" that person. ( 10 ) MR. Sanyal wanted to establish before the Court that as the mother is the legal guardian of a boy aged less than five years she was entitled to have the custody of the child and, the husband petitioner by taking away the child and driving out the wife from her matrimonial home prevented the wife from proceeding to a certain circumscribing limits for the custody of the child and thus wrongfully confined the child and it amounted to an offence. The learned Magistrate considering that ground acted rightly by issuing the search warrant for the recovery of the minor son of O. P. No. 2. I am not convinced with such submission of Mr. Sanyal. It is true that in view of section 6 (a) of the Hindu Minority and Guardianship Act, 1956, the natural guardians of a Hindu minor are - in the case of a boy or an unmarried girl, the father and after him, the mother provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. The interpretation of this section clearly shows that father is the natural guardian of both boy and unmarried girl and the section further prescribes that in case of custody of a minor who has not completed age of five years it shall ordinarily be with the mother. In the instant matter I am getting two different rival contentions of the parties. In the instant matter I am getting two different rival contentions of the parties. According to the husband, the wife was quarrelsome and was not in a mood to adjust in the matrimonial home and she even assaulted the husband and created mental torture on him. The wife voluntarily left the matrimonial home on 18. 12. 04 leaving the minor son in her matrimonial home. On the other hand, in the application under section 97 of the Code filed by the O. P. wife it was contended by her that her husband drove out her from matrimonial home on 18. 12. 04 in a wearing dress only taking her minor son in their custody. Whether the contention of the husband was correct or, the allegation of the wife was correct can be determined only on the basis of evidence. Without evidence it cannot be ascertained whether the husband drove out the wife and kept the child forcibly in his custody or. whether the wife left the matrimonial home leaving the child in custody of father. After establishment of that fact only it can be ascertained that the action of the husband amounted to offence if it is established that the husband forcibly took away the child from the custody of the wife after driving out her from her matrimonial home. In a matter for issue of search warrant under section 97 of the Code for recovery of the child from custody of father the prime consideration would be whether the action of the father or the husband amounted to illegal confinement of the child constituting an offence. ( 11 ) BEFORE issue of search warrant a Magistrate has to state in his order the reasons for issuing the search warrant. In that order it must appear that the action of the person against whom search warrant was issued amounted to illegal confinement constituting an offence and for the said ground there were valid reasons for the issue of search warrant for the recovery of the child. In the present matter I find that the very initial order of the learned SDM was bad in law as the learned Magistrate issued the search warrant without assigning any reason and without disclosing his prime facie satisfaction that the action of the husband amounted to an offence which justified issuance of search warrant. In the present matter I find that the very initial order of the learned SDM was bad in law as the learned Magistrate issued the search warrant without assigning any reason and without disclosing his prime facie satisfaction that the action of the husband amounted to an offence which justified issuance of search warrant. It is clear that the learned SDM by his order dated 21. 4. 05 without disclosing his prima facie satisfaction behind the issue of search warrant issued the same or the recovery of the child. The child was not confined into any unknown place and the child was also not in the custody of a criminal. The child as it appears was in custody of the father who is the natural guardian of the said minor. In this matter before issue of search warrant the order of the learned Magistrate should have disclosed the grounds for issue of search warrant which is totally lacking in the impugned order of the learned Magistrate. The learned Additional sessions Judge did not consider that the order of the learned Magistrate was not in accordance with law and the said order was passed without following the essential requirements of provisions of section 97 of the Code. Without considering that the order of the learned Magistrate was not in accordance with law and the same was not tenable, the learned Judge upheld the order of the learned Magistrate simply relying on couple of decisions but, did not consider that the grounds or the facts and circumstances of the reported decisions were not the same like the present matter. In those reported decisions the order of the learned Magistrate were in accordance with law as they issued search warrant finding that the action of the father amounted to prima facie as the father in those reported decisions forcibly snatched away the child from the custody of the mother while she was in her father's house. In the present matter the learned SDM without assigning any reason issued the search warrant and the learned Judge failed to appreciate the fact and legal principle that the foundation of the order of the learned magistrate was bad in law. Accordingly, in this matter both the learned magistrate as well as the learned Additional Sessions Judge, Durgapur acted with illegality as well as material irregularity. Accordingly, in this matter both the learned magistrate as well as the learned Additional Sessions Judge, Durgapur acted with illegality as well as material irregularity. ( 12 ) THE child of the parties who was born on 31. 12. 01 is now aged more than five years. In such a matter of dispute between the husband and wife concerning custody of the child the paramount consideration would be the welfare of the child. The District Court of the concerned district would be the proper Court to consider the matter in relation to the custody of the child after considering the paramount consideration of the welfare of the child. The said Court has also the jurisdiction to direct production of the child before the Court and the said Court after hearing the submissions of the husband as well as the wife and also on examination of the child and considering the welfare of the child may pass appropriate order for the ends of justice. Provisions of sections 7 to 17 of the Guardians and Wards Act, 1890 lay down the procedure and the Court under section 12 of the said Act has the power to make interlocutory order for production of minor and interim protection of person and property of the minor. The competent civil Court may also consider prayer of the respective parties for visiting the child in case the said Court directs custody of the child in favour of one of the guardians, for example, if the said Court directs custody of the child in favour of the wife, the husband may pray for permission to visit the child on a certain day or dates and vice versa. Merely the fact that the child has in the meantime completed five years cannot be automatic ground in favour of the father for the custody of the child because, the paramount consideration before the competent Civil Court would be the welfare of the child. ( 13 ) CONSIDERING the decisions cited by the learned Advocates for the parties I am of opinion that the decisions cited by Mr. Sanyal, the learned advocate for the O. P. No. 1 cannot be relied upon in this case as it has not been established that the action of the husband petitioner amounted to illegal confinement of the child constituting an offence. Sanyal, the learned advocate for the O. P. No. 1 cannot be relied upon in this case as it has not been established that the action of the husband petitioner amounted to illegal confinement of the child constituting an offence. The facts and circumstances of the decision in Vallabhram Ganpatram vs. Emperor (supra) are completely different from the facts and circumstances of the present matter. In the reported decision it was decided by the Hon'ble Bombay High court what was the meaning of 'unlawful' and what were the elements constituting an offence under section 381 of the IPC. In Banarsi vs. Neelam (supra) the child below five years was in the custody of the mother and mother did not give access of the child to the father. The Hon'ble Delhi high Court held that the custody of the mother of her own infant child and not permitting the father to have access to the child did not amount to an offence. In the said reported decision also it was observed by the High Court that the Magistrate could not be deemed to have satisfied himself that the confinement amounts to an offence and as such his order issuing search warrant was unsustainable in law. The Magistrate must have reasonable grounds to believe that the confinement in question is such that it amounts to an offence. In Purushottam Wamanrao vs. Warsha (supra) the children aged five and two years respectively were in the custody of the mother and she was residing in her parent's house with the children. The husband, that is, father of the children came to the parents' house of the wife and took away the said children on the plea of returning them to custody of wife but did not return the children and, considering that aspect it was held that the circumstances justified issuance of search warrant. The facts of the reported decisions as indicated above are wanting in the present case. In the present matter the husband did not forcibly took away the child from the custody of the mother while she was residing in her parents' house. For these reasons the decisions cited by Mr. Sanyal are not applicable but, on the other hand, the decision of the Hon'ble Delhi High Court supports my view that before issue of search warrant the Magistrate must disclose reasonable grounds for issue of search warrant. For these reasons the decisions cited by Mr. Sanyal are not applicable but, on the other hand, the decision of the Hon'ble Delhi High Court supports my view that before issue of search warrant the Magistrate must disclose reasonable grounds for issue of search warrant. ( 14 ) IT has been observed earlier that according to the husband the wife left the matrimonial home voluntarily on 18. 12. 04 leaving the child in father's house. On the other hand, the contention of the O. P. No. wife was that on 18. 12. 04 she was driven out of the matrimonial home by the husband after taking away the minor son from her custody. There was no evidence before the learned Courts below to ascertain the fact as to whether contention of the husband was true or, the contention of the wife was true. The wife did not file any specific complaint case to show that the action of the husband constituted an offence. It has already been observed that the order of the learned Magistrate issuing search warrant was bad in law as the learned magistrate issued the search warrant without assigning any reason and without being prima facie satisfied for the grounds justifying issue of search warrant issued the same. The child who has now completed five years is in custody of the husband-cum-father and such custody cannot be regarded as illegal confinement. In this connection I would place reliance more on the decision of the Hon'ble Supreme Court in Ramesh vs. Laxmi Bai (supra) as well as the decision of this Court in Bidyut Biswas vs. Kuheli Biswas (supra ). ( 15 ) THE discussions made above make it clear that the order of the learned sdm issuing the search warrant as well as the order of the learned Additional sessions Judge confirming the said order were not in accordance with law and the said orders are set aside. The revisional application accordingly stands allowed and disposed of in the light of the observations made above. ( 16 ) IN view of the aforesaid order allowing the revision, the application filed by the O. P. No. 2 wife for vacating the interim order being CRAN No. 1374 of 2006 fails as it has no merit and is accordingly dismissed. Revisional application allowed.