Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 2219 (GUJ)

MANEKLAL MOHANLAL PATEL v. STATE OF GUJARAT

2016-12-09

VIPUL M.PANCHOLI

body2016
JUDGMENT : VIPUL M. PANCHOLI, J. 1. The petitioner herein has challenged the order dated 03.05.2010 passed by the learned Metropolitan Magistrate, Court No.7 below application Exhibits No.1 & 5 in Criminal Misc. Application No.265 of 2009 whereby, the petitioner herein has been directed to hand over custody of minor-Heta, daughter of respondent no.2 herein, in favour of the respondent no.2 and also the order dated 16.07.2010 passed by the learned City Sessions Judge, Court No.7 in Criminal Revision Application No.207 of 2010 whereby, the said revision application has been dismissed. 2. The facts in brief are as under: The petitioner herein is the maternal grandfather of two girl child, named, Richa and Heta, aged around 05 years and 23 months respectively. On 11.12.2000 the daughter of the petitioner got married to respondent no.2 herein as per the prevailing rites and rituals of Hindu religion. Out of the said wedlock, the aforesaid two girl child were born. On 01.02.2009 an FIR was lodged by the petitioner against respondent no.2 herein & his family members vide IC.R. No.30 of 2009 for offences punishable under section 498A, 306 r/w. Section 114 of IPC and sections 3 & 7 of the Dowry Prohibition act. It was alleged that the daughter of the petitioner had committed suicide on account of the persistent torture and harassment meted out by respondent no.2 & his family members. 2.1 During the pendency of the Criminal Case, the respondent no.2 herein moved an application under section 25 of the Guardian and Wards Act being Civil Application No.77 of 2009 before the Family Court, Ahmedabad seeking custody of the minor daughter - Heta, who was residing along with the petitioner & his family members. Subsequently, the respondent no.2 also moved an application under section 97 of Cr. P.C. before the Court of learned Metropolitan Magistrate, Court No.7, Ahmedabad inter alia praying for issuance of a search warrant to produce the minor daughter - Heta before the Court and to grant her custody to him on the ground that she had been illegally confined. The petitioner herein opposed both the applications filed by respondent no.2. 2.2 On the application filed by respondent no.2 under section 97 of Cr. P.C., the learned Magistrate passed the impugned order dated 03.05.2010 whereby, the petitioner herein was directed to hand over custody of the minor daughter - Heta to the respondent no.2 herein. The petitioner herein opposed both the applications filed by respondent no.2. 2.2 On the application filed by respondent no.2 under section 97 of Cr. P.C., the learned Magistrate passed the impugned order dated 03.05.2010 whereby, the petitioner herein was directed to hand over custody of the minor daughter - Heta to the respondent no.2 herein. Being aggrieved by the order dated 03.05.2010, the petitioner preferred Criminal Revision Application No.207 of 2010 before the City Sessions Court, Ahmedabad. However, the said Revision Application was rejected by the learned City Sessions Judge, Ahmedabad, vide order dated 16.07.2010. Against the aforesaid order dated 16.07.2010, the petitioner has preferred the present application. 3. Mr. Shah, learned advocate for the petitioner, submitted that respondent no.2 herein has been prosecuted for the offences under section 498A, 306 r/w. Section 114 of IPC and sections 3 & 7 of the Dowry Prohibition Act. There is nothing incriminating on record to show that the custody of minor child - Heta with the petitioner & his family members is illegal. It was submitted that ever since the death of the deceased daughter, the minor child has been looked after by the petitioner and his family members. Therefore, no offence as alleged could be attributed to the petitioner so as to attract the provisions of Section 97 of Cr. P.C. 3.1 It is further submitted that the minor daughter - Heta has been taken care off by the petitioner and maternal family members ever since the deceased daughter left her matrimonial home. Therefore, there was no reason to draw the presumption that the custody of minor daughter - Heta with the petitioner was illegal. Hence, the learned Magistrate ought not to have issued the search warrant and handed over custody of the girl child in favour of respondent no.2. 3.2 It was contended by learned counsel for the petitioner that the preferential right accrued in favour of the father, ie. respondent no.2 herein, as observed by the learned Magistrate, is bad in law in view of the fact that for the same relief, the respondent no.2, in earlier point of time, had filed an application under section 25 of the Guardian and Wards Act before the Family Court. Subsequently, he filed the present application under section 97 of Cr. P.C., on which the impugned order came to be passed. Subsequently, he filed the present application under section 97 of Cr. P.C., on which the impugned order came to be passed. It was submitted that when the application under section 25 of the Guardian and Wards Act was pending adjudication before the Family Court, the learned Magistrate ought not to have entertained the application under section 97 of Cr. P.C. filed by respondent no.2. It was, therefore, submitted that both the Courts below have committed serious error in passing the impugned orders. 4. Mr. K.T. Dave, learned counsel for respondent no.2, supported the impugned orders passed by both the Courts below. It was submitted that even if an application under section 25 of the Guardian and Wards Act had been filed and was pending, there is no bar for the filing of an application under section 97 of Cr. P.C. and the learned Magistrate rightly considered such application. 4.1 It was further submitted that the learned Magistrate granted custody of the minor child in favour of respondent no.2 for the reason that respondent no.2 was the father of the child and that the child was not of an age where she could take a decision about her future well being. Further, the elder sister was already residing with respondent no.2. Hence, both the Courts below were completely justified in passing the impugned orders. 5. I have heard learned counsel for both the sides and perused the documents on record. It is true that the application under section 25 of the Guardian and Wards Act was filed prior in point of time than the application under section 97 of Cr. P.C. and that the learned Magistrate passed the impugned order during the pendency of the application under section 25 of the Guardian and Wards Act. 6. At this juncture, a reference to the provision of Section 97 Cr. P.C. is apposite. It reads as under: "97. Search for persons wrongfully confined. P.C. and that the learned Magistrate passed the impugned order during the pendency of the application under section 25 of the Guardian and Wards Act. 6. At this juncture, a reference to the provision of Section 97 Cr. P.C. is apposite. It reads as under: "97. Search for persons wrongfully confined. - If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class 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." 6.1 It is clear from the above provision that the learned Magistrate has powers to issue search warrant for securing the custody of any person who has been illegally confined. In my opinion, the pendency of an application under section 25 of the Guardian and Wards Act filed prior in point of time would not preclude the Magistrate concerned from deciding an application filed under section 97 of Cr. P.C. Hence, the contention raised by learned counsel for the petitioner that the learned Magistrate ought not to have entertained the application filed under section 97 of Cr. P.C. on account of the pendency of the application under section 25 of the Guardian and Wards Act is devoid of any merits. 7. It appears from the record that the minor daughter - Heta was not even 02 years' old when the application filed under section 97 of Cr. P.C. was considered by the learned Magistrate. The elder daughter - Richa, who was aged around 08 years at that time, was already residing with her father, i.e. respondent no.2. Time and again, it has been held in a catena of decisions of this Court as also of the Apex Court that in matters relating to custody of a child, paramount consideration is the welfare of the child. 8. While considering the application filed under section 97 of Cr. Time and again, it has been held in a catena of decisions of this Court as also of the Apex Court that in matters relating to custody of a child, paramount consideration is the welfare of the child. 8. While considering the application filed under section 97 of Cr. P.C., the reasons that weighed with the learned Magistrate are that the petitioner, who happens to be the maternal grandfather of the minor child, was aged around 65 years in the year 2010 and that her wife was a permanent resident of the United States of America and used to visit the foreign country very frequently, which fact was even admitted by the petitioner, meaning thereby, that the minor child may not get proper care and attention at the house of the petitioner. Under the circumstances, the learned Magistrate came to the conclusion that though respondent no.2 was facing prosecution for the alleged offence of the suicide of his wife, the fact remains that respondent no.2 was her father and that she was not in a position to decide about her future on account of her age. 9. Looking to the peculiar facts and circumstances of the case, I am of the opinion that the learned Magistrate has not committed any error in passing the impugned order. I am in complete agreement with the findings recorded by the learned Magistrate and hence, find no reasons to entertain this petition. 10. At this stage, a request has been made by learned counsel for the petitioner that the custody of minor daughter - Heta may be permitted to remain with the petitioner so that her studies during the current academic year do not get disturbed. However, such request was vehemently opposed by learned counsel for respondent no.2. In the peculiar facts and circumstances of the case, it is clarified that as an interim arrangement, the custody of minor daughter - Heta, who is presently around 09 years of age, is permitted to remain with the petitioner since it is reported that the school in which she is presently studying is situated at a very distant place from the residential house of respondent no.2. However, immediately after the end of the final exams for the current academic year, the custody of minor daughter - Heta shall be handed over to respondent no.2 so that both the sisters could reside together and the minor daughter - Heta could be admitted to a school nearer to the residential house of respondent no.2. The aforesaid order has been passed on the peculiar facts of the case and therefore, it may not be treated as precedent in future cases. With the above observations and directions, the petition stands disposed of.