Case Note & Summary
The petitioner, Mr. Oliver Menezes, filed a petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) before the High Court of Karnataka seeking to quash the order dated 10.01.2019 passed by the JMFC, II Court, Mangaluru in Criminal M.C.No.02/2019. The respondent, Mrs. Serita Therese Mathias, was the petitioner before the trial court. The parties were married on 03.12.2011 according to Christian rites and had two children: a daughter named Sarah born on 01.10.2012 and a son named Jayden born on 17.02.2015. The marriage was troubled. The wife filed Crl.M.C.No.2/2019 before the trial court under Section 97 CrPC, alleging that the husband had illegally detained the children and seeking their custody. The trial court allowed the application and directed the husband to hand over custody of the children to the wife and also directed the Inspector of Police, Mangaluru East Police Station to procure the children and restore them to the wife. The husband challenged this order before the High Court. The High Court examined the scope of Section 97 CrPC, which empowers a magistrate to issue a search warrant for a person who is unlawfully detained. The court noted that the children were with the father and there was no allegation that they were in illegal detention. The court held that the remedy for custody of children lies before the civil court or family court under the Guardian and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956, and not before a criminal court under Section 97 CrPC. The court found that the trial court had exceeded its jurisdiction and the proceedings amounted to an abuse of the process of the court. Accordingly, the High Court allowed the petition, quashed the impugned order dated 10.01.2019, and dismissed the proceedings in Crl.M.C.No.02/2019.
Headnote
A) Criminal Procedure Code, 1973 - Section 97 - Jurisdiction - Child Custody - Criminal court cannot pass orders for custody of children under Section 97 CrPC when children are not in illegal detention and are with the father - The remedy for custody lies before civil/family court under the Guardian and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 - Held that the trial court exceeded its jurisdiction by entertaining the application and directing police to procure children (Paras 1-10). B) Criminal Procedure Code, 1973 - Section 482 - Abuse of Process - Quashing - Proceedings initiated under Section 97 CrPC for custody of children when children are with father and not in illegal detention amount to abuse of process of court - High Court can quash such proceedings to prevent miscarriage of justice - Held that the impugned order and proceedings are quashed (Paras 10-12).
Issue of Consideration
Whether the order dated 10.01.2019 passed by the JMFC, II Court, Mangaluru in Criminal M.C.No.02/2019 and the entire proceedings in the said case amount to abuse of the process of the Court?
Final Decision
The High Court allowed the petition, quashed the impugned order dated 10.01.2019 passed by the JMFC, II Court, Mangaluru in Crl.M.C.No.02/2019, and dismissed the proceedings in Crl.M.C.No.02/2019.
Law Points
- Criminal court lacks jurisdiction to decide custody of children under Section 97 CrPC when children are not in illegal detention
- custody disputes must be adjudicated by civil/family court under Guardian and Wards Act
- 1890 or Hindu Minority and Guardianship Act
- 1956
- Section 482 CrPC can be invoked to quash proceedings that amount to abuse of process of court
