Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 738 (GAU)

Piyush Chamaria v. Hemanta Jitani

2014-07-25

INDIRA SHAH

body2014
JUDGMENT Dr. Indira Shah, J. 1. The order dated 04.12.2013 passed by the learned Additional Chief Judicial Magistrate, Tinsukia, in Complaint Case No. 175c/2008, whereby the minor daughter of the petitioner has been given to the custody of her maternal grandfather (Opposite Party No. 3), has been challenged in this Criminal Revision Petition. Heard Mr. P. Bora, learned counsel appearing on behalf of the appellant. Also heard Mr. R.K. Agarwal, learned counsel for the Opposite Parties. 2. The petitioner, hereinbefore, is the complainant of Complaint Case No. 175c/2008 and his case, in brief, is that he entered into wedlock with Madhu Chamaria, who died leaving behind the complainant as her husband and minor daughter aged about 2 1/2 years. Following the death of his wife, the relative of the deceased lodged a case against the complainant and his parents whereby the complainant and his parents were arrested by the police and they were released from custody after two months. It is the case of the complainant that while he was under the judicial custody, he gave custody and care of her minor daughter to his uncle Suresh Jajodia and aunt Smti. Shobha Jajodia. On 01.12.2007, the accused Hemanta, Jitani and Dipak Goel, both relatives of the deceased Madhu Chamaria came to the house of Bimal Chamaria, where Shobha Jajodia along with minor Shravya Chamaria lived and forcibly took away Shravya Chamaria despite the protest raised by Shobha Jajodia. Suresh Jajodia lodged an First Information Report (F.I.R.) but the police did not register any case. On being released from the custody, on bail, on 03.02.2008, when the complainant made inquiry from Hemanta and Dipak (accused persons) about his daughter, they refused to give any information. The abovementioned accused persons, in the meantime, handed-over the child, in question, to her maternal grandfather (accused No. 3). Having learnt about the whereabouts of the child, the complainant telephoned the grandfather of the child and though the grandfather admitted that the child was with him, he refused to handover the child to the complainant (husband of the deceased). The complainant also received the information that surname of the child has been changed by accused No. 3 from 'Chamaria' to 'Bajaj'. 3. The complainant also received the information that surname of the child has been changed by accused No. 3 from 'Chamaria' to 'Bajaj'. 3. The learned Additional Chief Judicial Magistrate, Tinsukia, took cognizance under Sections 363/365/34 IPC and issued search warrant, in terms of Section 97 of the Code of Criminal Procedure, 1973, for recovery of complainant's daughter Shravya Chamaria from the custody of Deokinandan Bajaj, grandfather of the child. However, the search warrant could not be executed. Then the learned trial Court passed another order directing the Superintendent of Police, Nagaon, for execution. The accused opposite parties filed revision petition against the orders and also against the cognizance taken of the offence against them. The learned Sessions Judge, Tinsukia, set aside the direction of search warrant under Section 97 of the Code of Criminal Procedure, 1973. The opposite parties/accused then filed an application under Section 482 of the Code of Criminal Procedure, 1973, before this Court, against the judgment & order passed by the learned Sessions Judge and this Court, vide judgment & order dated 14.03.2012, passed in Criminal Petition No. 257/2008, directed the opposite party to produce the minor daughter before the learned Additional Chief Judicial Magistrate, Tinsukia, and upon such production, the learned trial Court shall, determine, in the light of facts available on record on the law relevant thereto, the further custody of the child. In the meantime, the opposite parties have also filed an application for quashing the criminal case filed by the petitioner, which is still pending adjudication. During the pendency of the matter, this Court, vide order dated 07.02.2013 passed in Criminal Petition No. 272/2008 directed the learned Additional Chief Judicial Magistrate, Tinsukia, to determine the temporary custody of the child. On the basis of the directions of this Court, the learned Additional Chief Judicial Magistrate, Tinsukia, has allowed the Opposite Party No. 3 to keep the child in his care and custody. The learned trial Court observed that the complainant has remarried another woman. The accused Deokinandan Bajaj is the maternal grandfather of the child with whom the minor child has been residing at Nagaon and pursuing studies in Class-II in a good English Medium Institution... The learned trial Court observed that the complainant has remarried another woman. The accused Deokinandan Bajaj is the maternal grandfather of the child with whom the minor child has been residing at Nagaon and pursuing studies in Class-II in a good English Medium Institution... "If the custody of the girl is given to her father i.e. complainant, she may face hardship both mentally as well as financially due to the fact that her father is facing trial in a criminal case with allegations of murdering her mother (Madhu Chamaria) in the Court of Sessions Judge, Tinsukia. Further, it has precipitated that the complainant has remarried another woman after the death of his first wife i.e. Madhu Chamaria and the minor girl is the daughter of his first wife, as such, the ambiance created in the house of the complainant for the said reason, may not be conducive enough for the minor girl who is presently in a growing stage, as such needs care and proper upbringing in a normal atmosphere at home. Further, the aforesaid negative impact in the household of the complainant may negatively affect the mental balance of the child." 4. Mr. Bora, learned counsel for the petitioner, referring to the judgment passed by this Court in Criminal Petition No. 257/2008 and relying on the judgment passed by the Bombay High Court in Criminal Petition No. 1698/2013 submits that the father of the child is the natural guardian and therefore, he should not be deprived from obtaining custody of minor child. 5. Per contra, Mr. Agarwal, learned counsel for the opposite parties, has cited the cases of Sumedha Nagpal Vs. State of Delhi & Ors. (2000) 9 SCC 745 , Nil Ratan Kundu & Anr. Vs. Abhijit Kundu (2008) 9 SCC 413 ; Anjali Kapoor (Smt.) Vs. Rajiv Baijal (2009) 7 SCC 322 ; and Athar Hussan Vs. Syed Siraj Ahmed & Ors. (2010) 2 SCC 654 , in support of his contentions. 6. All the cases cited by Mr. Agarwal, learned counsel for the opposite parties, relates to Guardians and Wards Act 1890 wherein the settled position of law has been reiterated in almost all the cases that any order relating custody of the child, the welfare of a child is of paramount consideration. 7. 6. All the cases cited by Mr. Agarwal, learned counsel for the opposite parties, relates to Guardians and Wards Act 1890 wherein the settled position of law has been reiterated in almost all the cases that any order relating custody of the child, the welfare of a child is of paramount consideration. 7. In the light of what have been discussed above, whether in a case where cognizance against the opposite parties has been taken under Sections 363/365/34 IPC, the trial Court was justified to hand-over the custody of the child to the person who is accused of an offence of "wrongful confinement" of the minor child. 8. There is nothing to show that the child was being ill-treated by her grandfather who is one of the accused persons in the complaint case. The petitioner, being father of the child, is, undoubtedly, the natural guardian of a minor but a child is not a property or commodity. The issues relating to custody of a child is to be handled with due love, affection, sentiments and by applying human touch to the problem. The complaint lodged by the petitioner might have disclosed prima facie case to take cognizance against the opposite, parties but because of the fact that cognizance has been taken by the Magistrate, the child, like a commodity, cannot be handled. It is also a fact that the child, since 2007, has been residing with the opposite party No. 3. The criminal proceeding initiated by the petitioner against the opposite parties is under challenge and pending adjudication. The custody of the child cannot be decided solely by interpreting legal provisions. The Criminal Court has already determined the temporary custody of the child. That apart, it is submitted by the learned counsel for the opposite parties that proceeding under Guardians and Wards Act, 1890, is pending adjudication. For the foregoing reasons, this Court finds that it would not be proper on the facts and circumstances to interfere with the order passed by the trial Court. This criminal revision petition is accordingly dismissed and the same shall accordingly stands disposed of.