Final Order 1

Order Details: Order Below EX 1
Pdf Text: 1
715/N/2021
Nitesh V/s. Vaishali
ORDER BELOW EXH. 1
1] The application is u/s. 97 and 98 of Cr.P.C. for issuance of search
warrant for production of the minor daughters and to handover their
custody to the applicant.
2] The applicant is husband of respondent no. 4 Vaishali. He alleged
that respondent Vaishali had taken their daughters to the house of Raju
Panpatil without his consent. He made serious allegations against
Panpatil family as well. It is worth to note that respondent Vaishali had
filed a case under Domestic Violence Act vide CC No. 39/DV/2021
against the applicant on 05.04.2021. Thereafter, the applicant filed
present application on 13.07.2021.
3] On perusal of the application, it appears that there have
been strained matrimonial relation between the applicant and respondent
Vaishali. Respondent Vaishali has also made serious allegations against
the applicant. She has also lodged report with the police and raised
grievances before other authorities against the applicant. The applicant
alleges that respondent Vaishali left the house alongwith the daughters
under the influence of Panpatil family. On the other hand, respondent
Vaishali alleges that she was constrained to leave the house on account of
constant harassment by the applicant. Thus, it appears that there is
allegation and counter allegation. However, the applicant has not lodged
any report against the respondent Vaishali or the Panpatil family. Had
there been any apprehension in his mind about abuse of his daughters as
alleged, he would have immediately taken resort to the law enforcement
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agency. However, it seems that he did not bother to do so. Further,
according to the applicant, respondent Vaishali left his house in Jan.,
2021. He filed the present application after a gap of 6 months. He
would have leapt in action if he would have been too concerned about
his daughters. He would not have waited for such a long time.
4] It is important to consider the scope of Sec. 97 and 98 of
CrPC. Sec. 97 can be resorted to only when any person is confined under
such circumstances that the confinement amounts to have offence. Sec.
97 can be invoked in case of abduction or unlawful detention of a woman
or female child for unlawful purpose. It is for the applicant to show that
the circumstances exist that require an action under any of these
provisions. However, there is no material available on record to provide
a base for his apprehension. On the contrary, his conduct suggest that
there is no exigency as stated by him. Otherwise, he would have taken
immediate steps to rescue his daughters. It also appears that the
daughters are taking education. When they were residing with the
applicant, they had skipped their school tests. Thus, it doesn't seem that
they have been confined. Nor the applicant could show that they have
been abducted for unlawful purpose. The daughters are residing
alongwith their mother. The custody of mother cannot be said to be
unlawful.
5] It transpires from the present application that it is the outcome of
matrimonial discord. The applicant is seeking production of daughters
through the issuance of search warrant. He is also claiming their
custody. It seems that the underlying intention behind this application
is to secure the custody of the daughters. Sec. 97 or Sec. 98 are not
meant for such purposes. It is not a remedy to obtain custody of
children. The complicated questions about custody of children are not to
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be decided in the summary proceeding u/s 97 or 98. The normal and
acceptable course would be to approach the appropriate forum where
interim orders also can be sought as urgent relief. Thus, Sec. 97 or 98 is
not the appropriate remedy for such purpose.
6] The applicant relied on Zahirul HasanVsState of U.P. 1988
(1) Crimes 199 wherein Hon'ble Allahabad High Court observed that,
Sec. 97 can be invoked to recover custody of minor child. However, the
case was basically decided on the basis of personal law. Further, in the
said case, the father had conceded that he has no objection in giving
custody to the mother. But he did not abide by it. The concession made
by the father was the major consideration upon which the said decision is
based. No doubt, father is the natural guardian of a child. However, the
mother is also equally entitled for the custody of her child. Interpreting
the provisions of law to mean that the father only is entitled for the
custody of a child would amount to mischief and defeating the intention
of the legislature behind enacting said provisions. The applicant also
relied on Internet copy of order in Pravin Singh V/s. Biharilal Singh to
submit that right of hearing of the person against whom complaint is
made cannot be considered. There cannot be any dispute this ratio.
However, when the parties have matrimonial relation, every precaution is
required to be taken to prevent abuse of process of law and harassment
by one party of the other party by filing frivolous applications. The
applicant then relied on another internet copy of Judgment in Piyush
Chamaria V/s. Hemlata Jitani. In this case also it has been emphasis that
wrongful confinement is the criterion for exercise of power u/Sec. 97 of
CrPC. In applications u/Sec. 97 or 98 of CrPC, the satisfaction regarding
necessity of invoking these provisions is of utmost importance. However,
the applicant has failed to substantiate the requirement of the said
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provisions.
7] It is important to note that the remedy u/s 97 or 98 is an extra
ordinary remedy and can not be resorted to in ordinary course. The
applicant is required to make out a strong case to seek production of
daughters from the custody of mother whose custody cannot be said to
be unlawful. It was required to be shown that daughters were kept in
wrongful confinement which itself amounts to an offence or they were
abducted for unlawful purpose. However, the applicant has failed to
meet the requirements of Sec.97 or 98. He could not show that his
apprehension is well founded. On the contrary, it appears to be an
attempt to secure the custody of daughters by a shortcut method. From
the contents of the application coupled with the aforesaid discussion, I
am not satisfied that this is a fit case where power u/s 97 or 98 can be
invoked. Hence, following order is passed.
O R D E R
The application is dismissed.
Sd/
Date:. 03.08.2021. (Pragati. B. Yerlekar)
Metropolitan Magistreate
71st Court, Bandra, Mumbai
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