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2023 SCC OnLine HP 725 : 2023 Cri LJ 2977 : (2023) 1 Latest HLJ
763 : (2023) 3 HLR 100 : (2023) 4 AICLR 241
In the High Court of Himachal Pradesh at Shimla
(BEFORE VIVEK SINGH THAKUR, J.)
Lajwanti and Others … Petitioners;
Versus
Priti Devi and Others … Respondents.
Cr.M.M.O. No. 1164 of 2022
Decided on June 2, 2023
Advocates who appeared in this case:
For the Petitioner : Mr. Shanti Swaroop Bhatti, Advocate.
For the Respondents : Mr. G.D. Verma, Senior Advocate, alongwith
Mr. Hitesh Thakur & Ms. Shruti Sharma, Advocates, for respondent No.
1
Mr. Harinder Singh Rawat, Additional Advocate General, for
respondent Nos. 2 and 3.
The Judgment of the Court was delivered by
VIVEK SINGH THAKUR, J.:— The instant petition, under Section 482
of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.PC’)
has been preferred by petitioners, against order dated 23.11.2022,
passed by Sub-Divisional Magistrate, Nalagarh, District Solan, H.P., in
Case No. 72-IV of 2022, titled as Priti Devi v. Lajwanti, and
order/warrant dated 24.11.2022, issued in the same matter, whereby
Magistrate has held that respondent No. 1-Priti Devi, being natural
guardian of her minor sons, is entitled for their custody and SHO Police
Station Ramshahar, has been directed to produce minor children
(petitioners No. 4 and 5 herein) before Magistrate on 12.12.2022 for
handing over their custody to their mother Priti Devi.
2. I have heard learned counsel for the parties and have also gone
through the record.
3. Facts, emerging from the record, are that respondent No. 1-Priti
Devi was married with Amar Singh, who was son of petitioner No. 1-
Lajwanti and petitioner No. 2-Darshan Singh. Whereas, petitioner No. 3
-Sunita Devi was his sister. Petitioners No. 4 and 5 minors are children
of Amar Singh and respondent No. 1-Priti Devi.
4. Due to quarrels taking place between husband and wife as well as
with other members of family, Priti Devi and her husband Amar Singh
had been residing separately at Nalagarh. Whereas, petitioner Nos. 1
and 2 and other members of family were residing in Village Bahlam in
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Tehsil Ramshehar, District Solan, H.P. Petitioner No. 3-Sunita Devi has
been married to Jai Pal, resident of Khokhra, Post Office Khera, Tehsil
Nalagarh, District Solan, H.P.
5. Record reveals that there were quarrels not only between husband
Amar Singh and wife Priti Devi, but also between Priti and Sunita Devi
and other family members, i.e. Sunita as well as Darshan Singh and
Lajwanti, and to avoid quarrels, as per compromise, Amar Singh and
Priti Devi were residing at Nalagarh alongwith their two minor children.
Elder son Divyance is 7 years old, whereas, date of birth of younger son
Harshit is 14.06.2021.
6. On 17.07.2022, Amar Singh was taken to Hospital at Nalagarh by
Priti Devi, by informing local police, in police Van, where during
treatment he died at 10.30 p.m. At that time, her minor children were
alone in rented room. According to respondent No. 1-Priti, when she
was in Hospital attending to her husband, she called her parents to look
after minor children, who rushed to Nalagarh and mother of respondent
No. 1 stayed with children in the room. Whereas, father of respondent
No. 1-Priti came to the Hospital. In the meanwhile, Sunita Devi came to
the room of Amar Singh and took both children with her to Village
Bahlam, and, Darshan Singh lodged FIR against respondent No. 1-Priti
Devi alleging that Amar Singh committed suicide due to cruelties by his
wife respondent No. 1-Priti Devi. Resultantly, on 18.07.2022,
respondent No. 1-Priti Devi was arrested and, thereafter, she was
enlarged on bail on 27.07.2022. During intervening period children
remained with petitioner No. 2-Darshan Singh, who were handed over
to Darshan Singh by petitioner No. 3-Sunita Devi, who was well
acquainted with children because she was frequent visitor and she took
children to the house of her father (petitioner No. 2-Darshan Singh) in
Village Bahlam.
7. After release on bail, respondent No. 1-Priti Devi filed an
application under Section 98 of Cr. P.C. in the Court of Sub Divisional
Magistrate, Nalagarh, for production and custody of minor children, but
her application was rejected by the Magistrate on 09.8.2022 being not
maintainable. The said order was assailed by respondent No. 1-Priti
Devi before Additional Sessions Judge, Nalagarh, District Solan, H.P.,
who vide order dated 01.10.2022, passed in Criminal Revision No.
8/NL/10 of 2022, titled as Priti Devi v. State of H.P., set aside order
dated 09.08.2022 directing the parties to appear before the Magistrate
on 10.10.2022, with direction to the Magistrate to decide the matter
afresh. Whereafter, Magistrate passed impugned order dated
23.11.2022 against petitioner No. 1-Lajwanti and petitioner No. 2-
Darshan Singh, directing them to handover custody of minor children to
respondent No. 1-Priti Devi and, thereafter, on 24.11.2022 issued a
Production Warrant for handing over the children.
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8. It has been contended on behalf of grandparents of the children
that respondent No. 1-Priti Devi was not having good relations with her
husband, who was abetted by respondent No. 1-Priti Devi to commit
suicide and, therefore, lives of children will not be safe in the hands of
respondent No. 1-Priti Devi, and after death of their father there was
none in the world to take care of them except grandparents and,
therefore, under compelled circumstances, due to love and affection
and to protect future generations grandparents (petitioner Nos. 1 and
2) took their grandsons with them and by doing so, they have not
committed any offence of confinement which is mandatory for
attracting provisions of Section 97 Cr. P.C. It has further been
canvassed that mother is an accused for abetting father of children to
commit suicide and she is having no means to look after and bring up
children. Whereas, Darshan Singh-petitioner No. 2 is an Ex-Serviceman
and is having sufficient landed property which will be inherited by
minor children and, in these circumstances, it will be in the interest of
children to keep them with their grandparents, who are, in facts and
circumstances of the case, otherwise entitled to keep them being their
guardian as grandparents and, therefore, it has been contended that
Magistrate has not applied judicial mind while deciding application
preferred by respondent No. 1-Priti Devi.
9. It has been contended that being grandparents, petitioner Nos. 1
and 2 are natural persons to have custody of minor children and,
therefore, there is no illegal confinement as also has been observed by
the Magistrate in his order, however, in concluding part he has
committed a mistake by holding that respondent No. 1-Priti Devi is
entitled to have custody of minor children. According to him, it would
be in the interest of children to stay with grandparents who are having
means to look after them. Whereas, respondent No. 1-Priti Devi, mother
of children, has no means to earn livelihood and she as well as her
younger married sister are dependent upon their unemployed father,
who has no regular source of income. Further that, in these
circumstances, respondent No. 1-Priti Devi will not be in a position to
bring up the children in a better way than their grandparents, and
keeping in view paramount consideration of welfare of children
impugned order passed by the Magistrate deserves to be quashed and
set aside.
10. Referring judgment of Two-Judges' Bench of Supreme Court in
Special Leave Petition (Civil) No. 1243 of 2008, titled as Nil Ratan
Kundu v. Abhijit Kundu, reported in (2008) 9 SCC 413, it has been
argued that “guardian” means a person having the care of the person of
a minor or of his property, or of both his person and property and
“Ward” is defined as a minor for whose person or property or both,
there is a guardian. It has been submitted that mother is not capable
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and competent to claim guardianship of minor children and their father
had already expired and, therefore, now grandparents are competent
and entitled to have custody of minor children.
11. It has further been submitted that elder son has been admitted
in the School at Nalagarh in Jai Sacchidanand Public School, Village
Doli. Whereas, another son has been admitted in Anganwari and they
are happy with their grandparents, who are meeting every requirement
of children.
12. Referring judgments of Punjab and Haryana High Court in FAO
No. 1556 of 2008, titled as Neelam v. Man Singh, decided on
19.11.2014; and Madhya Pradesh High Court in Writ Petition No. 7069
of 2022, titled as Pilu @ Priya v. State of M.P., decided on 12.07.2022,
it has been contended that paramount consideration at the time of
determining entitlement for custody of minor children, is welfare of
children, and in present case, keeping in view accusation against
mother (respondent No. 1) and her financial condition, it would not be
in the interest of minor children to handover their custody to her and it
would be in the interest of children to keep them with their
grandparents. It has further been contended that as there is no illegal
confinement or wrongful confinement, for entitlement of grandparents
to have custody of minor grandchildren, petition/application under
Section 97 Cr. P.C. was not maintainable and, therefore, Magistrate has
committed a mistake by entertaining the petition and issuing direction
to handover custody of children to their mother despite the fact that he
himself recorded in the order that there is no wrongful confinement of
minor children in the hands of their grandparents. It has been further
contended that children were not missing, but with grandparents,
which was in the knowledge of respondent No. 1 and there was no
reason to believe her that her children were missing and, thus,
application/petition filed by her before the Magistrate was not
maintainable.
13. Learned counsel for the petitioners has submitted that status
report filed by the police is in favour of grandparents of the children,
wherein it has been submitted, after verification, that in the house of
Darshan Singh-petitioner No. 2, his grandsons are being looked after by
Darshan Singh and his family members in very nice manner and
younger child Harshit attends Anganwari and elder son is studying in
2nd class in a Public School, Doli. Further that, Darshan Singh and his
family members love the children too much and fulfill their every
necessity and both children are very happy with their grandfather
Darshan Singh and his family. Therefore, it has been contended that it
would be in the welfare of the children to keep them with their
grandfather and other family members where they are residing at
present.
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14. It has been further contended on behalf of the petitioners that
respondent No. 1 was arrested on 18.07.2022 and enlarged on bail on
27.07.2022. But she has instituted the case for custody of children in
the month of October 2022 which reflects that she was not interested in
custody of minor children, but has filed present application only in
order to have a claim on the property of petitioner No. 2-Darshan Singh
and his family through her minor children.
15. Learned counsel for the petitioners by referring judgments in
Harakh Singh v. Lalmuni Kuer, reported in 1977 Cri LJ 723 Patna; and
Anjula Divedi v. State Represented by Sub Inspector of Police, reported
in AIR 2016 Kar 358, has submitted that against impugned order
petition under Section 482 Cr. P.C., is maintainable.
16. Learned counsel for respondent No. 1, referring judgment of
Allahabad High Court in Zahirul Hassan v. State of Uttar Pradesh,
reported in 1988 Cri LJ 230, has contended that despite having
alternative remedy to file a case for custody of minor children, an
application by mother under Section 97 of Cr. P.C., is maintainable.
17. Referring judgment of Bombay High Court in Purushottam
Wamanrao Thakur v. Warsha, reported in 1992 Cri LJ 1688, it has been
contended that even father, in given facts and circumstances, depriving
mother from custody of children by removing them from mother's
residence, commits an offence amounting to wrongful confinement and
in such a case, Search Warrant is justified. It has further been
submitted that in present case, children have been removed from
mother's residence by the grandparents without any authority or
consent of the mother and, therefore, petition under Section 97 Cr.
P.C., by her is maintainable.
18. Referring pronouncement of the Supreme Court in Anjali Anil
Rangari v. Anil Kripasagar Rangari, (1997) 10 SCC 342, it has been
contended that mother is a natural guardian of minor children and
custody of children from her only can be taken away on the basis of
order/judgment passed by the Court after adjudicating her competence
and entitlement in appropriate proceedings either under Guardianship
and Wards Act, 1890 (in short ‘Wards Act’) or Guardianship Act, and
unless and until such verdict is there against mother she is entitled to
maintain application/petition under Section 97 Cr. P.C., for custody of
her minor children from their grandparents.
19. Referring pronouncement of Gauhati High Court in Piyush
Chamaria v. Hemanta Jitani, 2012 Cri LJ 2306, it has been contended
that taking away children from custody of mother and not allowing
them to meet her or denial to return their custody to their mother,
amounts to an offence of wrongful confinement of minors, for which it is
not necessary to kidnap them and in such a situation Magistrate has
jurisdiction under Section 97 Cr. P.C., to issue Warrant of Production
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and transfer custody of children to natural guardian i.e. mother and
issuance of such Warrant is not liable to be quashed on the ground that
mother can take recourse of remedy under Wards Act or Guardianship
Act.
20. Referring pronouncement of Supreme Court in Tejaswini Gaud v.
Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42, it has been
contended that petition for custody of minor children under Article 226
of Constitution of India or in alternative under Section 97 Cr. P.C., is
maintainable where detention of the children by a parent or others is
illegal or without any authority of law and such detention of minor by a
person, who is not entitled to his legal custody, amounts to illegal
detention for the purpose of grant of writ or issuance of
Search/Production Warrant under Section 97 Cr. P.C. It has been
further contended that when mother, natural guardian of minor
children, is available, who is entitled for custody of children, detention
of children by grandparents is an illegal detention of minor children as
petitioner No. 2-Darshan Singh in his statement before the Magistrate,
itself has stated that he shall not handover custody of minor children to
their mother in any eventuality.
21. It has been contended on behalf of the respondents that had
respondent No. 1 been abettor for commission of suicide by her
husband, then she would have never informed the police and would not
have taken him to the Hospital with the help of police.
22. It has also been submitted on behalf of respondent No. 1-
mother that contention raised on behalf of the petitioners that after her
release on bail on 27.07.2022, she instituted a case for custody of
children in the month of October 2022, is misleading because
immediately after release on bail on 27.07.2022, respondent No. 1 had
filed an application/petition before Sub-Divisional Magistrate for
custody of her children on 29.07.2022, which was taken up by the
Magistrate on 01.08.2022 and notices were issued to the respondents
(petitioners herein) for 06.08.2022. On 06.08.2022, statements of
parties were recorded. The said petition was dismissed on 09.08.2022.
Thereafter, respondent No. 1 assailed dismissal by filing a Revision
Petition before Additional Sessions Judge, Nalagarh, which was allowed
on 01.10.2022 and matter was remanded back to the Sub Divisional
Magistrate (SDM), who, after adjudicating the matter, allowed the
petition on 23.11.2022 directing the petitioners herein to handover
custody of children to respondent No. 1-mother. In furtherance to
aforesaid direction, Magistrate issued direction to SHO Police Station
Ram Shahar, to produce minor children before him on 12.12.2022 for
handing over their custody to the mother.
23. The aforesaid order passed by the SDM has been stayed, in
present petition, vide order dated 08.12.2022. It has been thus,
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contended that respondent No. 1-mother from the day one after her
release on bail is trying, by all legal means, to get custody of her minor
children.
24. In present case, parents of children, alongwith children, were
residing separate to the grandparents of children since long and were
upbringing the children. Father of children expired by committing
suicide. Grandfather lodged complaint against mother alleging
abetment by her to father (her husband) to commit suicide. Till then,
custody was with the parents including mother. After arrest of mother
custody of children was taken by grandparents. Immediately after her
release on bail, mother tried to have custody of her children and, for
that purpose, she initiated proceedings, in reference, in present case. It
is not a case where father of the children, who had committed suicide,
was living alongwith children but separate to the mother of children so
as to exclude the mother from having custody of children. Both of them
husband and wife (father and mother) were looking after their children.
Allegation that mother abetted the father of children to commit suicide
is yet to be proved.
25. It is also a fact that mother has not been declared incompetent
or disentitled to have custody of her minor children. According to
Section 6 of Hindu Minority & Guardianship Act, 1956 (in short
‘Guardianship Act’) in case of a boy, mother is a natural guardian after
father, with further proviso that custody of a minor, who has not
completed age of 5 years shall ordinarily be with the mother. Therefore,
after death of father mother is the next person to have
guardianship/custody of minor children.
26. Section 13 of Guardianship Act, 1956 provides, as also reiterated
in pronouncements referred supra, that apart from right of mother or
grandparents or anybody else to have custody/guardianship of child,
paramount consideration at the time of deciding the entitlement for
custody of minor child is welfare of the minor.
27. Section 7 of the Wards Act, 1890 provides that Court, on
satisfaction that it is for welfare of a minor, can pass order appointing a
guardian of person or property of minor or both, or also for declaring a
person to be a guardian of a minor and such order shall imply the
removal of any guardian who has not been appointed by will or other
instrument or appointed or declared by the Court.
28. Section 19 of the Wards Act, 1890 provides that a guardian is
not to be appointed or declared by the Court with respect to a minor
whose father or mother is living and is not, in opinion of Court, unfit to
be guardian of the person of a minor.
29. Section 39 of the Wards Act, 1890 empowers to remove
guardian appointed or declared by the Court or a guardian appointed by
will or other instrument, for causes narrated in the said Section.
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30. In present case, it is also noticeable that younger child has not
completed age of 2 years, whereas, elder one is about 7 years old. In
all eventualities mother is entitled to have custody of younger child and
it will be a cruelty to the children in case both of them are separated
from each other and, therefore, custody of elder child is also deserves
to be handed over to the mother with whom younger child will go.
31. Unless or until mother is incapacitated and declared incompetent
or disentitled for custody of children, by the competent Court in
appropriate proceedings in accordance with law, in view of Section 6 of
the Guardianship Act, mother, after death of father, is entitled to have
custody of her minor children.
32. Though learned counsel for the petitioners has contended that
respondent No. 1 is not having sufficient means to maintain and look
after minor children, but no such plea has been taken in the statements
of the petitioners recorded before the Magistrate.
33. In absence of any plea taken in the statements of the petitioners
before the Magistrate, issue of incompetence or disentitlement of the
mother has not been adjudicated by this Court. In case of initiation of
any proceedings on that count, concerned Court shall decide the same,
in accordance with law, on its own merit independent of order passed
for handing over custody to the mother under Section 97 Cr. P.C.,
without being influenced by observation made hereinabove.
34. Be that as it may, if there is substance in the contention raised
by petitioners No. 1 to 3, then they are at liberty to initiate appropriate
proceedings under the Wards Act and/or Guardianship Act.
35. Without going into the issue raised with respect to
maintainability of present petition for availability of alternative remedy
of filing Revision Petition, but taking into consideration entire facts and
pronouncements of the Supreme Court in absence of any material on
record to disentitle the mother from custody of children or
incompetency to look after and bringing up her children, but keeping
open the said issued to be adjudicated and decided by the competent
Court, if so desired by the grandparents or any other competent person,
I do not find any illegality, irregularity or perversity in the order under
challenge passed by the Sub-Divisional Magistrate, directing the
grandparents to handover custody of children to their mother.
Therefore, plea of petitioners is rejected and petition is dismissed.
36. However, it is clarified that right of mother to have custody of
children is not absolute, but subject to welfare of children and in case
in appropriate proceedings she is found incompetent and/or disentitled
to have custody of children or to ensure welfare of the children, then
she will lose right to continue their custody and in such eventuality
custody/guardianship of children may be handed over to their
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grandparents or any other person competent and entitled to have
custody of children, but, in accordance with law. Petitioners No. 1 to 3
are at liberty to avail appropriate remedy, in accordance with law.
37. Before parting with the case, I am constrained to observe that
despite the fact that proceedings under Section 97 Cr. P.C., are judicial
proceedings, record/file of proceedings in the Court of Sub-Divisional
Magistrate has not been maintained in proper manner. There is no
separate order sheet indicating on which date what order was passed
by the Magistrate. Record has been maintained like a layman. Such
practice or affair in keeping and managing record of judicial
proceedings requires to be deprecated and improved and for
improvement the Magistrates are required to be instructed to keep
record of judicial proceedings in proper manner with proper order
sheets of day-to-day proceedings on the dates fixed for conducting
such judicial proceedings with respect to order passed by the
Magistrates on that dates. Concerned ministerial staff is also required to
be trained.
38. The Chief Secretary to the Government of Himachal Pradesh is
directed to look into the matter personally and to ensure proper
keeping and maintaining of record of judicial proceedings by the
officers conducting judicial proceedings in the State of Himachal
Pradesh. He is also directed, if required, to take necessary steps to
conduct training of officers and/or officials of the State dealing with
judicial work/files in H.P. State Judicial Academy.
39. Copy of this order be sent to the Chief Secretary to the
Government of Himachal Pradesh for necessary action in terms of
paragraphs 37 and 38.
40. Record be returned to Sub-Divisional Magistrate, Nalagarh,
District Solan, H.P.
41. Petition stands disposed of in aforesaid terms, so also pending
application(s), if any.
42. Parties are permitted to produce/use copy of this order,
downloaded from the web-page of the High Court of Himachal Pradesh,
before the concerned Court/authorities concerned, and the said
Court/authorities shall not insist for production of a certified copy but if
required, may verify passing of the order from Website of the High
Court.
———
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