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2011 DIGILAW 72 (JK)

Bashir Ahmad Mir & Ors. v. Rubeena Akhter

2011-02-24

AFTAB H.SAIKIA

body2011
1. Heard Mr. A. M. Dar, learned counsel for the husband-petitioner as well as Ms. Arifa Dar, learned counsel representing the wife-respondent. 2. By means of this Criminal Revision Petition, the petitioner has challenged the orders dated 29.10.2010 and 3.11.2010, passed by the learned Sub Registrar (Judicial Magistrate 1st Class), Srinagar (hereinafter referred to as the 'learned Magistrate') in file No. 55-W while entertaining the application under Section 100 Cr. P. C preferred by the respondent, whereby a search warrant was issued against the petitioner for search and production of the male child, namely, Shaban Ahmed Mir, aged about 3 (three) years (although as per School certificate dated 4.11.2010, as annexed to the revision petition, the date of birth of the child was shown as 6.8.2006) and subsequently, the custody of the child was handed over to the mother-respondent in the open Court giving liberty to the parties to approach the competent authority for guardianship of the child respectively. 3. As agreed to by the learned counsel for the parties and also keeping the issue raised herein in mind, this Court proposes to dispose of this revision petition at the admission stage. 4. The core issue involved in this revision petition is as to whether the mother-respondent is entitled to get the custody of the child from her husband-pe­titioner by invoking the provisions of Section 100 Cr. P. C. 5. For proper resolution of the lis, it would be necessary to portray the factual matrix of the matter in brief. 6. The petitioner married the respondent in the year 2005 in accordance with the Muslim Personal Law and out of their wedlock a male child was born on 6.8.2006, as per School record. However, the marriage was hit by the turbulence and, eventually, culminated in a formal divorce between the parties, and in that regard, a deed of divorce was executed on 21.9.2009. One of the conditions stipu­lated in the divorce deed, was that the boy child was to be handed over to the petitioner who should maintain him properly. 7. After dissolution of marriage in the year 2009, the son was with the father. There is allegation from the respondent's side that she was not allowed to take the custody of the minor child. Apprehending danger to her son at the hands of the petitioner, she moved an application under Section 100 Cr. 7. After dissolution of marriage in the year 2009, the son was with the father. There is allegation from the respondent's side that she was not allowed to take the custody of the minor child. Apprehending danger to her son at the hands of the petitioner, she moved an application under Section 100 Cr. P. C, before the learned Magistrate claiming release of the child from the alleged illegal detention of the husband. 8. Admittedly, the husband/petitioner has married again and the child has been in the father's custody, where he is having a step mother. 9. The learned Magistrate, while entertaining the application under Section 100 Cr. P. C, after hearing the learned counsel for the parties and on being satisfied, by his order dated 29.10.2010, issued a search warrant against the petitioner for search and production of the child with a direction to the police to produce the child before the Court on or before 3.10.2010. 10. On 3.10.2010, the police produced the child before the Court and both the parties were heard through their engaged learned counsel. 11. Having considered the submissions of the learned counsel for the parties, the Court disposed of the application, ordering that the child be handed over to the mother in the open Court, observing further that the parties would be at liberty to approach the competent Court for the guardianship of the child. 12. The legality and correctness of those orders have been assailed in this revision petition, basically on two grounds, (i) the impugned orders, ex-facie, suffer from jurisdictional error, inasmuch as the learned Magistrate was not permitted to entertain the petition under Section 100 Cr. P. C., holding that the child was under illegal and wrongful confinement of the petitioner, who is father and natural guardian of the child and (ii) when the child is with the father in terms of deed of divorce, there cannot be any question of illegal or wrongful confinement of the child under the father. 13. Mr. Dar, learned counsel for the petitioner, pressing into service the above two grounds for seeking interference of this Court with the impugned orders, has forcefully submitted that bearing in mind "welfare of the child", the petitioner has been taking all care for the maintenance and sustenance of the child. 13. Mr. Dar, learned counsel for the petitioner, pressing into service the above two grounds for seeking interference of this Court with the impugned orders, has forcefully submitted that bearing in mind "welfare of the child", the petitioner has been taking all care for the maintenance and sustenance of the child. Even he has been admitted to School, namely, Abu Seera Educational Institute, Tengpora By-epass, Srinagar-2 in Class L.K.G. Moreover, since the petitioner is a Government employee, he is also financially sound when the respondent/wife has no source of income for maintenance of the child. 14. In order to persuade the Court to accept the submissions so made on behalf of the petitioner, Mr. Dar has drawn attention of this Court to a judicial authority of Rajasthan High Court in a case of Prakash Chandra Jain v. Smt. Chandrawati, reported in 1996 (3) CCC 33, wherein the mother was directed to hand over the custody of the child to his father keeping in view the fact that since mother had no source of income, a male child could better be looked into by the father in comparison to the mother. The said finding was based on two decisions of the Supreme Court namely, (i) Jilabai Vithalrao Gajra v. Jathankhan & Ors, AIR 1971 SC 312 (ii) Rosy Jacob v. A. Chakramukki, AIR 1973 SC 2090 . 15. Per contra, Ms. Jan, learned counsel for the respondent, supporting the impugned orders, has vehemently submitted that since the petitioner has married a second wife, her minor child would not be safe in the hands of the step mother who has also bore a child to the petitioner and she apprehends every danger to the person of her child, being a minor. At the same breath, she has also submitted that the wife is also having her income through the occupation of tailoring. It is stated that she is not yet re-married. More importantly, it is submitted that she was not a party in the execution of the so called divorce deed executed on 21.9.2009. Nor has she put any signature therein and the same is evident on, the face of the document itself. 16. Under such circumstances, the submission of Ms. Jan is that the welfare of the child shall be well looked into by the respondent only. 17. Nor has she put any signature therein and the same is evident on, the face of the document itself. 16. Under such circumstances, the submission of Ms. Jan is that the welfare of the child shall be well looked into by the respondent only. 17. It is true that 'welfare of the child' is the paramount consideration for granting custody of a child. However, in the instant case, law on the question of giving custody of the infant child under Muslim Law is clear and loud. 18. Section 352 of Mulla's Principles of Mohomedan Law (Nineteenth Edition) page 287, provides as under: - "352. Right of mother to custody of infant children. - The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child (e), unless she marries a second husband in which case the custody belongs to the father (f)," 19. From a bare perusal of the above provisions of law, it would candidly show that up to the age of seven years, custody of the male child must be vested upon the mother. It is also very clear that even the divorcee is also entitled to such custody as per age limit mentioned therein. However, the mother is not entitled to exercise such right if she marries a second husband. 20. On close scrutiny of the materials available on record, in the case in hand, the male child, as per School records, is less than five years and the respondent does not re-marry second husband till date. On the other hand, the husband has married the second wife and is having a child from his second wife. In view of the same, in the considered opinion of this Court, the male child cannot be well looked after by the husband in true spirit of the "welfare of the child". Significantly, from the examination of the deed of divorce so annexed to the revision petition, it appears that the respondent was not a party in the execution of the said deed. 21. Significantly, from the examination of the deed of divorce so annexed to the revision petition, it appears that the respondent was not a party in the execution of the said deed. 21. Since all the essential requirements laid down in the relevant law, as quoted above in this context, has been fulfilled in the case in hand, this Court is of the firm view that the mother is entitled to get the child in her custody. 22. Coming to the point of jurisdictional error, as complained, committed by the learned Magistrate by invoking Section 100 Cr. P. C for search and production of the child and thereafter handing over the custody of the child to the mother, it is unhesitatingly held that when mother is entitled under law to get the custody of the child under the age of seven years, the father under Muslim Law is not permitted to keep the child in his custody. 23. For facility of reference, Section 100 Cr. P. C may be reproduced as under: "100. Search for persons wrongfully confined If any Magistrate of the first class or 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, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith 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." 24. In the above premises, this Court is of the view that no jurisdictional error has been committed by the learned Magistrate in issuing search warrant and granting custody by invoking Section 100 Cr, P. C. Further more, the parties have been given liberty to move the appropriate forum for the guardianship of the child. 25. Order Impugned dated 3.11.2010 passed by the learned Magistrate, for the sake of convenience, may be quoted hereunder: "3.11.2010:-Parties with their counsels present A.S.I Ghulam Mohi-ud-din of P/s Rambagh produced the child today at 3 PM, heard the counsel and perused relevant provisions of law. Since the child is aged about 3 years. Since there is no order of a court for appointment guardian of child legally it is mother who is entitled to the custody such a child. Since the child is aged about 3 years. Since there is no order of a court for appointment guardian of child legally it is mother who is entitled to the custody such a child. Therefore disposing of this application the child is handed over to the mother in the open court. For guardianship of child parties are at liberty to approach the competent court." 26. In view of what has been stated, observed and discussed hereinabove, this Court is of the view that this petition is bereft of any merit. 27. In the result, this revision petition stands dismissed. 28. At this stage, Ms. Jan, learned counsel for the respondent has informed the Court that when the minor child is in the mother's lap in the Court premises today itself at 10.15 am, the petitioner has forcefully taken away the child from her custody despite the impugned orders are being in force. 29. On consideration of the above submission made before the Court, steps be taken immediately by the Police authority/authorities to implement the impugned orders dated 29.10.2010 and 3.11.2010 passed by the learned Magistrate.