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2013 DIGILAW 7 (ORI)

Neha Garcha v. Captain Sukhinder Singh Garcha

2013-01-07

B.K.NAYAK

body2013
ORDER 1. Heard learned counsel for the petitioner. None appears on behalf of opposite party No.1 on call. Perused the records. Order dated 13.06.2012 passed by the learned Sub-divisional Magistrate, Sambalpur in Criminal Misc. Case No. 318 of 2012 under Section 97 of the Cr. P.C. directing issuance of search warrant to the I.I.C., Station B. Division, Police Station, Jamnagar, Gujarat to produce the child, Dhruv Singh Garcha, who is admittedly in the custody of the present petitioner, has been assailed in this revision. Admittedly, the petitioner and opposite party No. 1 are wife and husband and the child, Dhruv Singh Garcha aged about 8 years is their son born out of their wedlock. It was alleged in the proceeding under Section 97 of the Cr. P.C. by opposite party No.1 that on 30.03.2012 without giving any information the present petitioner went to her parents place at Jamnagar along with the child and has never returned back to opposite para No.1. It appears that opposite party No.1 has also started criminal case alleging theft of valuable articles by the present petitioner, before the learned Sub-divisional Magistrate, Sambalpur and at the same time, the petitioner has also initiated maintenance case under Section 125, Cr. P.C. and also lodged F.I.R. against opposite party No.1 for alleged commission of offences under Section 498-A/323/406/420 of the IPC. It was further alleged before the learned Sub-Divisional Magistrate by opposite party No.1 that the petitioner has kept the child confined in her custody and not allowing opposite party No.1 to have access to him. In the aforesaid circumstances, Sub-Divisional Magistrate has held that the petitioner is keeping the child forcefully, which amounts to wrongful confinement, which is an offence. Accordingly, he directed for issue of search warrant. Admittedly, the parties are Hindus and the mother is also a natural guardian of her child. Even if the father is the natural guardian of the child above five years of age, the continuance of the custody of a child with the mother, cannot be said to be illegal by any means and, therefore, keeping the child in custody of the mother cannot be said to be an offence either by wrongful confinement or wrongful restraint. Even if the father is the natural guardian of the child above five years of age, the continuance of the custody of a child with the mother, cannot be said to be illegal by any means and, therefore, keeping the child in custody of the mother cannot be said to be an offence either by wrongful confinement or wrongful restraint. My view is fortified by the decision of the apex Court in Anjali Anil Rangari vs. Anil Kripasagar Rangari and others, (1997) 10 SCC 342 , where in a similar circumstance, in relation to the custody of a child of nine years with the mother, the apex Court has held as follows:– "3. The only question that needs to be considered in the context of the facts and circumstances of the present case is as to whether provisions of Section 97, Cr. P.C. would be invoked. It cannot be disputed that the mother is also a natural guardian under Section 6 of the Hindu Minority and 0uardianship Act, 1956. If it is so, could be it said that the custody of the two minor children with the mother was illegal and they were under her wrongful confinement? In the facts and circumstances of the case, we are unable to hold that the custody of the children with the mother was either unlawful or they were wrongfully confined by the mother at Delhi if this be so the very basis of the impugned order cannot be sustained and consequently the impugned order is required to be set aside. We accordingly do so." In the aforesaid circumstances, the impugned order and the warrant issued for production of the child before the Sub-divisional Magistrate, Sambalpur in pursuance thereto are set aside. Accordingly, the Criminal Revision is disposed of. Issue urgent certified copy. Criminal Revision disposed of.