Case Note & Summary
The petitioner, Pramod V. Kamble, is the husband of respondent no.1, Jyoti P. Kamble. After marriage, they resided at their matrimonial home in Palus. Matrimonial disputes arose, and respondent no.1 started living separately at her parents' house. In October 2011, respondent no.1 filed an application before the Judicial Magistrate First Class, Malshiras, under Section 97 of the Code of Criminal Procedure, 1973 (CrPC), alleging that the petitioner had taken their son Rahul from her parents' house to his house at Palus and was refusing to return him unless she brought money from her parents. The Magistrate issued a notice to the petitioner and caused the child to be produced. After hearing the parties, the Magistrate rejected the application, holding that Section 97 CrPC was not applicable as the confinement must amount to an offence. Respondent no.1 filed a revision before the Sessions Court. The Additional Sessions Judge allowed the revision and directed the petitioner to hand over custody of the child to the mother. The petitioner then filed the present criminal writ petition before the High Court. The High Court examined the scope of Section 97 CrPC and held that the provision applies only when a person is wrongfully confined in a manner that amounts to an offence. The father, being a natural guardian, cannot be said to be wrongfully confining his own minor child. Custody disputes between parents should be adjudicated under family laws such as the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956, and not under Section 97 CrPC. The High Court set aside the order of the Sessions Judge and restored the order of the Magistrate rejecting the application. The court clarified that the mother may pursue appropriate remedies before the civil court or family court for custody of the child.
Headnote
A) Criminal Procedure Code - Section 97 - Wrongful Confinement - Scope - Section 97 CrPC applies only when a person is wrongfully confined in such a manner as to amount to an offence - The father cannot be said to be wrongfully confining his own minor child, as the father is a natural guardian and has a right to custody - The remedy for custody disputes lies under family laws, not under Section 97 CrPC (Paras 5-10). B) Criminal Procedure Code - Section 97 - Child Custody - Jurisdiction - A Magistrate cannot invoke Section 97 CrPC to decide custody disputes between parents - The proper forum is the civil court or family court under the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 - The order of the Sessions Judge restoring custody to the mother was set aside (Paras 5-10).
Issue of Consideration
Whether the provisions of Section 97 of the Code of Criminal Procedure, 1973 can be invoked by a mother against the father of the child for the recovery of the child who is in the custody of the father, and whether the Magistrate has jurisdiction to pass an order under Section 97 CrPC in such circumstances.
Final Decision
The High Court allowed the petition, set aside the order of the Additional Sessions Judge, and restored the order of the Magistrate rejecting the application under Section 97 CrPC. The court held that the father cannot be said to be wrongfully confining his own minor child, and custody disputes should be adjudicated under family laws, not under Section 97 CrPC.
Law Points
- Section 97 CrPC requires confinement amounting to an offence
- father cannot be said to be wrongfully confining his own minor child
- custody disputes should be decided under family law not criminal law
