While setting aside the order passed by the Judicial Magistrate of Sumbal under Section 97 of CrPC which had issued search-cum-production warrant in respect , the Jammu and Kashmir and Ladakh High Court in a most learned, laudable, landmark, logical and latest oral judgment titled Showkat Ahmad Mir vs Nighat Begum in CRM(M) No.240/2022 that was pronounced just recently on February 12, 2024 minced just no words to unequivocally hold that custody of minor child with his father cannot be termed as illegal confinement. It must be noted that the High Court while allowing the petition held unequivocally 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. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Sanjay Dhar sets the ball in motion by first and foremost putting forth in para 1 that:
The petitioner has challenged order dated 20.06.2022 passed by Judicial Magistrate 1st Class, Sumbal, whereby, in an application filed by respondent against the petitioner under Section 97 of the Cr. P. C, search-cum-production warrant has been issued by the learned Magistrate in respect of minor son of the parties from the custody of the petitioner.

To put things in perspective, the Bench envisages in para 2 that:
The facts leading to the filing of the instant petition are that the petitioner had entered into a wedlock with respondent in the year 2015 and out of the said wedlock, one male child, who was about five years old at the time of filing of this petition, was born. It appears that the matrimonial relationship between the parties got strained, which resulted in filing of petition by respondent/wife against the petitioner/husband under the provisions of Protection of Women from Domestic Violence Act, a suit for restitution of conjugal rights by respondent against the petitioner and a criminal complaint by petitioner against the father and other relatives of the respondent.

As it turned out, the Bench enunciates in para 3 that:
The respondent/wife filed an application under Section 97 of the Cr. P. C before the learned Judicial Magistrate 1st Class, Sumbal, seeking production of minor son who was in custody of his father, the petitioner herein. The learned Magistrate, on the basis of aforesaid application, passed the impugned order directing SHO, P/S Noorbagh, Srinagar, to execute the search warrant and produce the minor son of the parties from the custody of his father i.e. the petitioner herein. It is this order which is under challenge by way of present petition.

On the one hand, the Bench specifies in para 4 that:
The petitioner has challenged the impugned order, primarily, on the ground that he being father of the minor child is entitled to his custody and his custody cannot be termed as illegal or amounting to an offence. It has been further submitted that the minor son of the parties is regularly attending his school and that the petitioner is taking good care of his welfare but the learned Magistrate has, on the basis of concocted and false allegations made by respondent in her application, passed the impugned order without application of mind. It has been further submitted that the petitioner had approached the learned Magistrate by way of an application for recalling of the impugned order but the same was not considered.

On the contrary, the Bench then specifies wife’s version by stating in para 5 that:
The respondent/wife has contested the petition by filing a reply to the same. In her reply, the respondent has stated that the petitioner has always treated her with disdain and has harassed her. It has been further submitted that the petitioner has refused and neglected to maintain the respondent and the minor child, as a result of which she was forced to file an application under the provisions of Protection of Women from Domestic Violence Act before the learned Magistrate. It has also been submitted that the respondent is interested in welfare of the minor child and that the petitioner is not taking good care of the minor child, who has been virtually confined by him after taking away his custody from the respondent. It has been further contended that keeping in view the age of the minor child, the respondent who happens to be his mother, is best suited to take care of his welfare.

Do note, the Bench notes in para 10 that:
Adverting to the facts of the instant case, the respondent in her application before the learned Magistrate has alleged that the minor son of the parties is in custody of the father and she has apprehension that life of the minor son may be endangered. It has been also averred in the application that confinement of the minor son by the petitioner/father is with an intention to prevent him from love and affection of his mother, as a result of which he is going to suffer mentally and psychologically. On the basis of these assertions made by the respondent in her application, the learned Magistrate has, in the impugned order, observed that the child requires nourishment, care and protection of his mother for his welfare and that father cannot be a proper substitute to look after the child. It has also been observed that in the circumstances the confinement of the minor child amounts to an offence.

Most significantly, the Bench then mandates what constitutes the cornerstone of this notable judgment in para 11 that:
As is clear from the averments made in the application filed by the respondent and the observations made by the learned Magistrate in the impugned order, the primary concern of the mother as well as the learned Magistrate is the welfare of the minor child. So far as this aspect of the matter is concerned, the same has to be taken into account by the Court while deciding a petition for custody of the minor child under the Guardians and Wards Act. In a proceeding under Section 97 of the Code of Criminal Procedure, the Magistrate has to ascertain from the material produced before him as to whether confinement of the child amounts to an offence. As already stated, the allegation of the respondent is that the minor child is in custody of the petitioner/father. 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 a minor child.

While citing the most relevant and remarkable case law, the Bench propounds in para 12 that:
This Court in the case of Shameem Ahmad vs. Ashiya Begum, 2016 (3) JKJ 128, has, while dealing with a similar matter, held that father of minor children having their custody cannot be per se said to be an offence for which powers under Section 100 of J&K Cr. P. C (which is in pari materia with Section 97 of the Central Cr. P. C) could be invoked. While holding so, the Court relied upon the following observations of the Supreme Court in the case of Ramesh vs. Laxmi Bai, (1998) 9 SCC 266:

4. From a perusal of the impugned order of the High Court, it appears to us that though the points which should weigh with a court while determining the question of grant of custody of a minor child have been correctly detailed, the opinion of the High Court that the revisional court could have passed an order of custody in a petition seeking search warrants under Section 97 CrPC in the established facts of the case is untenable. Section 97 CrPC prima facie is not attracted to the facts and circumstances of the case when the child was living with his own father. Under the circumstances, we are of the opinion that the orders of the High Court dated 17-7-1996 and that of the learned Additional Sessions Judge dated 9-7- 1996 cannot be sustained and we accordingly set aside the orders and the directions given therein.

As a corollary, the Bench then expounds in para 13 that:
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.

Most forthrightly, the Bench postulates in para 14 holding that:
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.

Resultantly, the Bench directs in para 15 that:
For the foregoing reasons, the petition is allowed and the impugned order passed by the learned Magistrate is set aside.

Finally, the Bench concludes by directing in para 16 that:
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.

All told, we thus see that the Jammu and Kashmir and Ladakh High Court has made it indubitably clear that custody of minor child with his father cannot be termed as illegal confinement. The High Court very rightly sets aside the order passed by the Magistrate under Section 97 of CrPC. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh