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2011 DIGILAW 227 (CHH)

SHAM JAISWAL v. LAXMI BHANU

2011-07-11

MANINDRA MOHAN SHRIVASTAVA

body2011
ORDER 1. This petition has been filed by the petitioner aggrieved by order dated 20-08-2009 (Annexure P-1) passed by the learned Revision Court i.e.1st Additional Sessions Judge, Bilaspur, by which, the revision filed by the responder has been allowed, setting aside order dated 28-01-2009 passed by the Sub Divisional Magistrate, Bilaspur, and the matter has been remanded for fresh consideration under Section 97 of the Cr.P.C. 2. Brief facts of the case are that the respondent moved an application before the Sub Divisional Magistrate, Bilaspur under Section 97 of the Cr.P.C. for custody on the allegations that minor Somu @ Yashwardhan was born out of her wedlock, but, the petitioner has exploited her and taking undue advantage of the situation that he was engaged in the divorce proceedings, the respondent was harassed. On 29-04-2004, the petitioner forcibly took away the son of the respondent from her lawful custody and even though, the reports have been lodged in the Police Station, no action has been taken, till date. The Sub Divisional Magistrate, Bilaspur issued notice to the petitioner and the parties led their evidence, and thereafter, the Sub Divisional Magistrate, Bilaspur passed order on 28-01-2009 rejecting the application of the respondent. Aggrieved by the said order, the respondent preferred revision before the Additional Sessions Judge, Bilaspur. Vide order dated 20-08-2009 passed in Criminal Revision No.104 of 2009, the learned Revisional Court set aside the order passed by the Sub Divisional Magistrate, Bilaspur and remanded the case for consideration afresh in accordance with law. Assailing the correctness and validity of the order passed by the Revisional Court, learned counsel for the petitioner argued that the order of the Revisional Court suffers from gross perversity, inasmuch as even though, the finding recorded by the Sub Divisional Magistrate, Bilaspur with regard to welfare aspect of the child, was not traversed, yet it has been recorded that the Sub Divisional Magistrate, Bilaspur has failed to mention specifically as to why, there was no need to issue search warrant under Section 97 of the Cr.P.C. Learned counsel argued that the Sub Divisional Magistrate, Bilaspur had rightly taken the view that as far as question of validity of marriage is concerned, proceedings under Section 97 of the Cr.P.C. are summary in nature and in those proceedings, the issue with regard to validity of marriage or existence of relationship or paternity could not be decided. Further submission of learned counsel for the petitioner is that the Sub Divisional Magistrate, Bilaspur has taken into consideration the welfare aspect of the child and after recording evidence of the parties and upon assessment of oral and documentary evidence available on record, arrived at the conclusion that the child is being taken proper care by the petitioner, and therefore, application of the respondent was rightly rejected. Therefore, the order of the remand passed the learned Revisional Court is wholly unwarranted and in excess of jurisdiction conferred under the law. He further submits that the present is not a case that the petitioner is an outsider. He claimed custody on the basis that he is the father of the child. In support of his submission, learned counsel for the petitioner relied upon the decision of the Supreme Court in the case of Ramesh Vs. Smt. Laxmi Bai1. 3. On the other hand, learned counsel for the respondent submitted that the respondent was never married nor had any relationship with the petitioner and the petitioner always exploited her. It is also submitted that the respondent has never admitted that the child-Somu was born out of the relationship between the petitioner and the respondent and on the other hand, it has been stated by the respondent that the child was born out of the wedlock between the respondent and her husband. It is next submitted that the learned Sub Divisional Magistrate has not enquired into this aspect of the matter and rejected' the application without making proper enquiry. Learned counsel also argued that the respondent come out with material that when the child was forcibly taken out of custody of the respondent, a report was lodged in the Police Station. It is also submitted that the learned Sub Divisional Magistrate has not made proper enquiry with regard to welfare of the minor, because the minor was not being properly taken care of by the petitioner and he was unable to maintain, which is evident from the fact that an application for grant of maintenance was filed on behalf of the Somu through the petitioner. It is also submitted that though the Sub Divisional Magistrate has also taken into consideration some of the aspects with regard to education, which is being provided to the child, other aspects that the petitioner has contacted more than one marriage and has many other children to maintain and that the child is not in proper care of the petitioner, but the child was kept with some other lady, has not been taken into consideration by the Sub Divisional Magistrate. It is also submitted that in these circumstances, the Revisional Court was perfectly justified in setting aside the order passed by the Sub Divisional Magistrate and remand the matter for consideration afresh. Learned counsel for the respondent relied upon the decision of the Allahabad High Court in the case of Zahirul Hassan Vs. State of Uttar Pradesh, to submit that merely because the respondent has an alternative remedy, application under Section 97 of the Cr.P.C. cannot be rejected. 4. I have considered the submission made by learned counsel for the parties and perused the records. 5. The respondent moved an application under Section 97 of the Cr.P.C. for custody of the Child on the allegation that the child was born out of her wedlock with Amar Singh and that during the pendency of divorce proceedings, the petitioner exploited her and took undue advantage of the situation and thereafter on 29-04-2004, the child was forcibly removed from her custody. In the reply, which was filed by the petitioner before the Sub Divisional Magistrate, it has been stated that the respondent had come in contact with the petitioner and there was existence of physical relationship between the petitioner and the respondent and child was born out of this illicit relationship. In the reply, it has been stated that the respondent did not take care towards the maintenance of the child and she left the house on 10-04-2004, and thereafter, started living adulterous life. After that, the petitioner has taken care of the child and providing all care for welfare of the child. 6. From the evidence, which has been recorded by the Sub Divisional Magistrate in proceedings under Section 97 of the Cr.P.C., it is revealed that the issue with regard to paternity of the child had come up for consideration. After that, the petitioner has taken care of the child and providing all care for welfare of the child. 6. From the evidence, which has been recorded by the Sub Divisional Magistrate in proceedings under Section 97 of the Cr.P.C., it is revealed that the issue with regard to paternity of the child had come up for consideration. While the respondent in her application and evidence stated that the child is born out of her wedlock with Amar Singh, the petitioner herein in his reply as well as in his evidence has stated that the child is born out of the wedlock and relations with the respondent and when the respondent left the house, he is living with him. The Sub Divisional Magistrate after going through the evidence on record recorded a finding that the issue with regard to validity of marriage and paternity of child could not be decided in a summary proceeding. Therefore, to that extent, findings of the Sub Divisional Magistrate does not appear to be such as to warrant interference. 7. As far as maintainability of proceedings under Section 97 of the Cr.P.C. is concerned, I am of the view that notwithstanding existence of various remedies available under the Guardians and Wards Act, 1890, application under Section 97 of the Cr.P.C. could not be thrown out only on the ground of existence of such remedy. In such a situation, three remedies are available. Firstly, an application under Section 97 of the Cr.P.C. can be moved. The proceedings may also be drawn for custody of the child under the Guardians and Wards Act, 1890 and even, petition for issuance of a direction in the nature of habeas corpus would be maintainable. However, in all these proceedings, the most important consideration would be the welfare of the minor child. Therefore, even in a case, where the Sub Divisional Magistrate may not be able to decide conclusively the issue with regard to validity of marriage and paternity of child, on assumption that the child is borne out of the wedlock of the relationship between the parties, the Sub Divisional Magistrate could always decide and has jurisdiction to decide the issue with regard to custody of the child keeping in view the welfare of child as paramount consideration in his mind. In the case of Zahirul Hassan2 (supra), relying upon the verdict of the Supreme Court, it has been held that in all such proceedings whether it be under the Guardians and Wards Act, 1890 or under Section 97 of the Cr.P.C., the paramount consideration is welfare of the minor and not the legal right of this or that particular party. 8. Learned counsel for the petitioner, relying upon the decision of the Supreme Court in the case of Ramesh1 (supra), is quite right in submitting that in a case, where the child is in custody of his/her father, Section 97 of the Cr.P.C. is not prima facie attracted and the question of the welfare of the child could be gone into the appropriate cases. 9. The order passed by the learned Revisional Court in para 9 that the Sub Divisional Magistrate has taken a view that the question with regard to legality and validity of marital status could not be decided by the Sub Divisional Magistrate and that the Sub Divisional Magistrate has also taken into consideration that the child is residing along with the petitioner and is being provided convent education and properly looked after, but specific reasons have not been stated as to why, search warrant is required to be issued. On these considerations, the learned Revisional Court has exercised his Revisional jurisdiction to interfere with the order of the Sub Divisional Magistrate. 10. A perusal of the order passed by the Sub Divisional Magistrate would show that the Sub Divisional Magistrate has taken into consideration the plea of the parties and the evidence, which has been led by the parties, has come to the conclusion that the legality and validity of the marriage could not be gone into in the summary proceedings. Thereafter, the Sub Divisional Magistrate has taken into consideration that the child is residing with the petitioner for the last four years and is provided convent education and is also properly looked after, on all these considerations, the application under Section 97 of the Cr.P.C. has been rejected. 11. Whether the petitioner has raised specific defence that he is the father of the child, ordinarily proceedings under Section 97 of the Cr.P.C. would not be attracted, as has been laid down by the Supreme Court in the case of Rameshl (supra). 11. Whether the petitioner has raised specific defence that he is the father of the child, ordinarily proceedings under Section 97 of the Cr.P.C. would not be attracted, as has been laid down by the Supreme Court in the case of Rameshl (supra). Secondly, the Magistrate has taken into consideration the relevant aspects, which also touch upon the welfare of the child. The findings, which have been recorded by the Sub Divisional Magistrate, based on proper appreciation of evidence on record, have not been specifically traversed by the learned Revisional Court, but the learned Revisional Court has sought to interfere only on the ground that the Sub Divisional Magistrate has not recorded any specific reason, as to why issuance of search warrant is not required. 12. In the opinion of this Court, the finding recorded by the learned Revisional Court is wholly perverse. The Sub Divisional Magistrate has clearly recorded in its order as to why the application is being rejected. The view adopted by the learned Revisional Court, by examining the correctness and validity of those reasons., which have been stated by the Sub Divisional Magistrate, is not correct. Provisions contained in Section 97 of the Cr.P.C. provide that if the Sub Divisional Magistrate 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. Therefore, the Sub Divisional Magistrate, for issuance of search warrant, reason to believe that the person is confined under such circumstances that it amounts to offence. The learned Revisional Court has also not dwell into this aspect at all, but has mechanically ordered the case to be remanded. Therefore, the order passed by the learned Revisional Court remanding the case cannot be sustained in the eye of law and is therefore set aside. 13. In view of foregoing, the petition is allowed. Petition Allowed.