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Himachal Pradesh High Court · body

2015 DIGILAW 291 (HP)

Deepak Kumar v. State of H. P.

2015-04-06

SURESHWAR THAKUR

body2015
JUDGMENT Sureshwar Thakur, J (oral) Minor child Komal @ Pooja is aged 1 ½ years. Her father, petitioner No.1 herein, had her in his custody. The mother of minor child, respondent No.2 herein, moved an application under Section 97 Cr.P.C before the competent Court. The competent Court while exercising jurisdiction vested in it under Section 97 Cr.P.C proceeded to issue search warrants for production of minor child Komal @ pooja, who is aged about 1 ½ years and is breast fed by the respondent No.2. On the minor child being produced before the Competent Court, the latter handed over the custody of the minor child to her mother being her natural guardian. The father, who is petitioner No.1 herein, is aggrieved by the said order. The learned counsel appearing for the petitioner herein has canvassed before this Court that the impugned order is jurisdictionally void, inasmuch, as, the Magistrate who had exercised the powers vested in it under Section 97 Cr.P.C for production, on issuance of search warrants , of the minor child, was, jurisdictionally incompetent to render an order as he did, for handing over the custody of the minor child to her mother. The learned counsel for the petitioner in making the aforesaid submission, appears to have lost sight of the fact that an incisive and close reading of the provisions of Section 97 of Cr.P.C unravels the fact of it empowering the competent Magistrate to issue search warrants for the production of the minor child from the purported illegal confinement wherein she/he is kept, besides also jurisdictionally rendering him competent as well as investing him with a power to make a further order qua the person who is entitled to the custody of the minor child, on the latter being produced before him. The power vested in the competent Court, to, make any further order, on production of the minor child from the purported illegal confinement before it, encompasses also the power to hand over, as the competent court did, in the impugned order, the custody of the minor child to the person who in the facts and circumstances of the case is deemed fit, expedient and appropriate to have her/his custody. This Court while exercising jurisdiction under Section 397 Cr.P.C qua the custody of minor Pooja aged 1 ½ years, for whose custody, there is an acid contest inter-se her father (petitioner No.1 herein) and her mother (respondent No.2 herein), stands in the pedestal of Parens Patricia. Hence, this Court has to be mindful of the fact whether the order impugned before this court has taken into consideration the relevant, apt and germane factors necessarily to be borne in mind by the Competent Court for adjudging the legal tenacity of the rival claims made by the father and mother of the minor child Pooja for the latters custody. The preeminent fact which ought to weigh with this Court is whether the welfare of the nascent child aged 1 ½ years and who is brest fed by her mother would remain intact or would remain protected in case her custody is handed over to her father, who is petitioner No.1 herein. The minor aged 1 ½ years and who is breast fed by her mother, has to be bestowed with and showered upon the love and affection of her mother, who is the respondent No.2 herein. Though, it would be, not appropriate to say that petitioner No.1 who is the father of the minor child, would not shower or bestow love and affection upon his minor child. However, given the nascence of the minor child and the fact that she is breast fed by her mother, ultimately then, her nutritional needs necessitating hers partaking a natural diet would be met or satiated only by her mother, who is the respondent No.2 herein. Besides, given the infancy of the minor child, the necessary love and affection as is required at this stage by the minor child would in larger and natural measure be showered upon the minor child for ensuring her proper nourishment and growth, by the respondent No.2 herein. Besides, given the infancy of the minor child, the necessary love and affection as is required at this stage by the minor child would in larger and natural measure be showered upon the minor child for ensuring her proper nourishment and growth, by the respondent No.2 herein. The learned counsel for the petitioners contends that respondent No.2 is not financially empowered to meet the needs of food and clothing of the minor child, yet, petitioner No.1, who is the father of the minor child, is under a pious as well as a legal obligation, to, even when the custody of the minor child has been ordered to be handed over to respondent No.2 herein, meet out the expenses as would be entailed for the upkeep and maintenance of the minor child. There is no infirmity in the impugned order and same is accordingly affirmed. Petition stands dismissed.