Jammu & Kashmir High Court: Ali Mohammad Magrey, J. allowed a petition under Section 561-A of the Criminal Procedure Code.
The petitioner married the respondent in 2002 and gave birth to a child in 2005 out of the wedlock. The couple got divorced in 2009, and the petitioner re-married another man in 2012. The child, being her minor daughter, was living with the petitioner ever since birth. Respondent never paid any maintenance for the child. On an application of the petitioner, the Divisional Commissioner directed the respondent to pay the maintenance.
Under the law, the respondent could not have succeeded in a guardianship suit because the child was yet to attain the age of 13 years and the petitioner being the natural guardian would have been entitled custody. In light of this situation, the respondent filed a petition under Section 100 of the CrPC. The trial Magistrate allowed the application filed by the respondent directing the petitioner to restore the custody of the minor daughter to the respondent. Aggrieved thereby, the petitioners herein preferred a revision petition before the Court of learned Principal Sessions Judge for seeking setting aside the said order.
Now the question before the High Court is whether the provisions of Section 100 of the CrPC could be invoked and, consequently, could it be said that the custody of the minor child with the mother was illegal and that the child was under her wrongful confinement?
The petitioner argued that the issue of guardianship and custody cannot be decided under Section 100. This Section confers the Magistrate with the power to issue a search warrant for the production of the confined person before the Court only if he has the reason to believe that the person has been kept in illegal confinement and such confinement constitutes an offence. The expression “reason to believe” imposes responsibility on the Magistrate to record cogent reasons which would suggest that the confinement amounts to an offence. The trial Magistrate in the present case held that the petitioner had no legal right whatsoever to the custody of the child and her refusal to hand over the child to the respondent resulted in illegal detention of the minor daughter within the meaning of Section 100 CrPC.
The High Court considered the facts of the case and held that the custody of the minor child with her mother was not wrongfully confined by the mother, stating that “a mother is also a natural guardian of the child”. If the respondent was aggrieved with the custody of the child, he should have filed an application before a competent Court of the jurisdiction in terms of the Guardians and Wards Act. The order of the Trial Magistrate was quashed.[Rehana Kouser v. Altaf Ahmed, 2019 SCC OnLine J&K 646, decided on 26-07-2019]
