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2022 DIGILAW 554 (RAJ)

Jyoti Songara v. State Of Rajasthan

2022-02-16

VIJAY BISHNOI

body2022
JUDGMENT 1. This criminal misc. petition under Section 482 CrPC has been preferred on behalf of the petitioner being aggrieved with the order dated 22.12.2021 passed by the Additional Sessions Judge (Link Officer), Raisinghnagar, District Sriganganagar (for short 'the revisional court'), whereby the revisional court while exercising the revisional jurisdiction has stayed the order dated 07.12.2021 passed by the SDM, Anoopgarh, District Sriganganagar (for short 'the trial court')- 2. Vide order dated 07.12.2021, the trial court has issued a search warrant on an application under Section 97/98 CrPC preferred by the petitioner before the trial court. In the aforesaid application, the petitioner has alleged that custody of her minor son, who was born on 11.08.2021 was forcibly taken by the respondent No.6 on 20.9.2021, who is her husband. It is also alleged by the petitioner that at present her minor son is in illegal confinement of the respondent Nos.6 and 7, so search warrant may be issued and her minor son be produced before the trial court. 3. Learned counsel for the petitioner has argued that pursuant to the search warrant dated 07.12.2021, the SHO, PS Anoopgarh, Distt. Sriganganagar went to Delhi, where the respondent No.6 resides, but the search warrant could not be served upon them as house of the respondent Nos.6 and 7 was locked. Again the search warrant was issued on 20.12.2021 by the trial court, however in between on 10.12.2021, the respondent No.6 has preferred a revision petition before the revisional court and in that revision petition, no notices were issued to the petitioner and on an application preferred on behalf of the respondent No.6, the Link Officer has taken up the matter and passed the impugned order dated 22.12.2021. It is submitted that before passing of the order dated 22.12.2021, no opportunity of hearing was given to the petitioner. 4. It is further submitted that from the order dated 22.12.2021, it is clear that the petitioner was informed on mobile when she was not present in Anoopgarh but the revisional court has treated the said information as sufficient and observed that service of notice upon the present petitioner is sufficient. 5. Learned counsel for the petitioner has also submitted that the revision petition filed by the respondent No.6 against the interlocutory order is not at all maintainable, but despite that the revisional court has granted indulgence and passed the impugned order. 5. Learned counsel for the petitioner has also submitted that the revision petition filed by the respondent No.6 against the interlocutory order is not at all maintainable, but despite that the revisional court has granted indulgence and passed the impugned order. Learned counsel for the petitioner has also submitted that the petitioner's minor son is only six months of age and is required to be taken care by his mother only. 6. It is also submitted that as per the provisions of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (for short 'the Act of 1956'), as a matter of course of custody of a minor, who has not completed the age of five years, ordinarily be with mother. 7. Learned counsel for the petitioner while placing reliance on the decision of the Hon'ble Supreme Court rendered in the case of Yashita Sahu V. State of Rajasthan & Ors (Criminal Appeal No.127/2020 decided on 20.01.2020) has argued that welfare of a child is paramount consideration and a minor below the age of five years should ordinarily be remain in the custody of his mother. 8. Per contra, learned counsel Mr. D.S. Thind has argued that proceedings under Section 97/98 CrPC initiated at the instance of the petitioner before the trial court are not at all maintainable. Itis submitted that minor son of the petitioner and the respondent No.6 is in custody of the respondent No.6, who is also a natural guardian and in such circumstances, it cannot be said that the custody of the minor son with the respondent No.6 is illegal in any manner. It is also submitted that the petitioner in a petition for mutual divorce filed before the ADJ, Karanpur under Section 13-B of the Hindu Marriage Act, has specifically agreed that custody of the minor child will remain with the respondent No.6. 9. Learned counsel for the respondent No.6 has submitted that in the above facts and circumstances of the case, it cannot be said that the custody of the minor son of the petitioner and the respondent No.6 is illegal or the minor is in illegal confinement of the respondent No.6. 10. Heard learned counsel for the parties and perused the material available on record. 11. 10. Heard learned counsel for the parties and perused the material available on record. 11. Section 6(a) of the Act of 1956 clearly provides that custody of a minor who has not completed the age of five years shall ordinarily be with the mother. 12. The Hon'ble Supreme Court in the case of Roxann Sharma Vs. Arun Sharma, reported in AIR 2015 SC 2232 has held as under: "Section 6 of the HMG Act is of seminal importance. It reiterates Section 4(b) and again clarifies that guardianship covers both the person as well as the property of the minor; and then controversially states that the father and after him the mother shall be the natural guardian of a Hindu. Having said so, it immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The significance and amplitude of the proviso has been fully clarified by decisions of this Court and very briefly stated, a proviso is in the nature of an exception to what has earlier been generally prescribed. The use of the word "ordinarily" cannot be over emphasised. It ordains a persumption, albeit a rebuttable one, in favour of the mother. The learned Single Judge appears to have lost sight of the significance of the use of word "ordinarily" in as much as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment." 13. At present this Court is concerned about the welfare of the minor son of the petitioner and the respondent No.6. It is not in dispute that the minor son of the petitioner and the respondent Nos.6 was born on 11.08.2021 and at present he has just completed six months. 14. This Court is of the opinion that at this preliminary age, the utmost requirement to the minor son is that he should be taken care and given love by his mother only. 15. 14. This Court is of the opinion that at this preliminary age, the utmost requirement to the minor son is that he should be taken care and given love by his mother only. 15. So far as the law points raised by learned counsel for the parties regarding maintainability of the proceedings under Section 97 and 98 CrPC initiated at the instance of the petitioner before the trial court and regarding the maintainability of the revision petition preferred on behalf of the respondent No.6 before the revisional court are concerned, the same require consideration. 16. Hence, Admit. 17. No need to issue notices to the respondent No.4 and 5. 18. Learned Public Prosecutor accepts notices on behalf of the respondent Nos. l to 3. 19. Learned counsel Mr. DS Thind is appearing on behalf of the respondent No.6 and 7. Service is, therefore, complete. 20. In the meanwhile, the custody of the minor son of the petitioner and the respondent No.6 be immediately handover to the petitioner. 21. Let this matter be listed on 21.03.2022 for final disposal. 22. The respondent No.6 is free to visit the child during pendency of this petition in every fifteen days. 23. The petitioner shall facilitate visit of the respondent No.6 and shall not create any obstruction in it. The respondent No.6 may inform the petitioner in advance about his visits.