Custody Of Minor Child With His Father Cannot Be Termed As Illegal Confinement: Jammu & Kashmir And Ladakh HC Set Aside Order Passed By Magistrate U/S 97 Of Cr.P.C.
The Jammu & Kashmir and Ladakh High Court set aside an order passed by Judicial Magistrate, Sumbal which issued search-cum-production warrant in respect of the minor son who was in the custody of his father.
The Court, while allowing the petition, held that the custody of a child with his father can, in no circumstances, be termed as illegal confinement amounting to an offence as the father happens to be the natural guardian of the minor child.
A bench of Justice Sanjay Dhar, while relying on the observations made in Ramesh v. Laxmi Bai (SC) and Shameem Ahmad v. Ashiya Begum (JK&LHC), observed, “From the foregoing analysis for law on the subject, it is clear that unless it is shown from the material on record that confinement of a person is illegal in nature and it amounts to an offence, a Magistrate cannot exercise his powers under Section 97 of the Cr. P. C and issue a search warrant for production of such person.
14) The custody of a minor child with his father can in no circumstances be termed as illegal amounting to an offence. Therefore, it was not open to the learned Magistrate to pass the impugned order directing production of the minor child. The said order is, therefore, unsustainable in law.”
Advocate Naveed Gul appeared on behalf of the Petitioner and Advocate Rizwan-ul-Zaman appeared on behalf of the Respondent.
An application was filed by the Respondent-wife under Section 97 of the Cr.P.C. before the Magistrate seeking the production of the minor son who was in the custody of the Petitioner-father. The Magistrate passed the impugned order directing the police authorities to execute a search warrant and produce the minor son from the custody of his father. Aggrieved by the order the Father filed a petition before the High Court.
The Court reiterated that two things are essential before a Magistrate can issue a search warrant under Section 97 of Cr.P.C.; one is that a person should be confined and secondly, the confinement of such person should amount to an offence.
The Court further held, “It is pertinent to mention here that during the pendency of this petition, as an interim measure, custody of the minor child was given to the respondent/mother. So far as the question regarding permanent custody of the minor child is concerned, the parties are at liberty to approach the competent court under Guardians and Wards Act for appropriate orders.”
The Respondent-wife contested that the Petitioner-father has refused and neglected to maintain her and the child, as a result, she filed an application under the provisions of the Protection of Women from Domestic Violence Act, 2005. She also averred that the confinement of the minor son by his father is to prevent him from the love and affection of his mother.
Accordingly, the petition was allowed, and the impugned order was set aside.
Cause Title: Showkat Ahmad Mir v. Nighat Begum
Appearance:
Petitioner: Advocate Naveed Gul
Respondent: Advocate Rizwan-ul-Zaman
