Madhya Pradesh High Court
Anita D/O Shri Mangilal vs Vijay @ Vijesh on 4 December, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 4 th OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 36105 of 2023
BETWEEN:-
ANITA D/O SHRI MANGILAL W/O VIJAY @ VIJESH
BANJARA, AGED ABOUT 27 YEARS, OCCUPATION:
NOTHING MORWAN TEHSIL JAVAD DISTRICT
NEEMUCH (MADHYA PRADESH)
.....APPLICANT
(BY SHRI KRISHNAPAL SINGH KHICHI-ADVOCATE)
AND
1. VIJAY @ VIJESH S/O BHIMSINGH BANJARA,
AGED ABOUT 24 YEARS, OCCUPATION: LABOUR
POKHRADA TEHSIL MANASA DISTRICT
NEEMUCH (MADHYA PRADESH)
2. ANUVIBHAGIYA DHANDADHIKARI UPKHAND
JAWAD DISTRICT NEEMUCH (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI AVINASH KUMAR KHARE-ADVOCATE)
This application coming on for orders this day, th e court passed the
following:
ORDER
Applicant/wife has filed the present Misc. Criminal Case under Section
482 of Cr.P.C. being aggrieved by order dated 06.07.2023 passed in Criminal
Revision No.06/2023 by Additional Sessions Judge Javad, District Neemuch
whereby order dated 14.02.2023 passed by Sub Divisional Officer, Javad has
been set aside.
2. The applicant and respondent No.1 are husband and wife by virtue of
their marriage solemnized on 08.04.2018 under Hindu ritual and rites. The
applicant gave birth to a son namely Rudhrax. The applicant lodged an FIR at
Crime No.257/2022 on 15.06.2022 for the offence punishable under Section
498-A, 506/34 of IPC at Police Station Javad, District Neemuch.
3. The applicant approached before the Sub Divisional Officer under
Section 98 of Cr.P.C.alleging that she was forced to leave the house on
01.05.2022 for not fulling the demand of dowry of Rs.2,50,000/-. On
01.05.2022, her son Rudhrax was snatched by the respondent No.1 for which
a report dated 28.05.2022 at Mahila Police Station, Neemuch was lodged,
therefore a warrant be issued and custody of son handed over to her. The
respondent No.1 appeared and objected that the present proceedings are not
maintainable under Section 98 of Cr.P.C. and liable to be dismissed. The
learned Sub Divisional Officer, vide order dated 05.08.2022 dismissed the claim
that applicant may approach the Competent Court to obtain the custody.
4. After dismissal of the proceedings, again she applied under Section 98
of Cr.P.C. on 05.07.2022 and vide order dated 14.02.2023, the custody of
Rudhrax be directed to be handed over to her by the Sub Divisional Officer. At
that time Rudhrax was 15-17 months old.
5. Being aggrieved by the aforesaid order, the respondent No.1
approached the Additional Sessions Judge, vide order dated 06.07.2023, the
Additional Sessions Judge, set aside the order of Sub Divisional Officer dated
14.02.2023 that provision 97 and 98 of Cr.P.C. both have wrongly been applied
in the present case and restored the custody of Rudhrax to the
husband/respondent No.1, hence, this Misc. Criminal Case before this Court.
I have heard the learned counsel for the parties.
6. Learned counsel for the respondent No.1 submits that the respondent
No.1 filed an application under Section 13(1) (I-A)(I-B) 1(I) of Hindu Marriage
Act, 1955 seeking divorce by way of dissolution of marriage. Vide judgment
dated 19.06.2023, the divorce has been granted which has been accepted by the
applicant. The compromise was arrived under which the custody of child was
continued with the husband/respondent No.1. The applicant is living in adultery,
therefore, the future of son would not be secured with her. In support of his
contention, learned counsel has placed the reliance on the judgment passed in
case of Ramesh Vs. Smt. Laxmi Bai reported in 1999 AIR SCW 4783,
Duryodhan Mahanta Vs. Saraswati Mahanta, 1992 CRI. L.J.2231,
Yudhistir Mohanand Vs. Dalimba Mohanand 1990 CRI. L.J. 1085.
7. Learned counsel for the applicant submits that looking to the age of
child, he need company of mother and after attaining age about 5 years, the
respondent No.1 may apply for custody of child for appointment of
guardianship before the Family Court and till then son be permitted to live with
mother.
8. It is correct that the proceedings of under Section 97 and 98 of
Cr.P.C. are not maintainable before the Sub Divisional Officer especially in the
matter of custody of child. In catena of cases, this Court as well as Apex Court
has held that the Sub Divisional Officer should not exercise the power under
Section 97 and 98 of Cr.P.C.for handing over the child one of spouse,
therefore, the Additional Sessions Judge has not committed any illegality while
setting aside the order passed by the Sub Divisional Officer. Even otherwise
earlier the Sub Divisional Officer has already rejected the application and
directed to applicant resort the remedy available under the law. The applicant is
residing separately since 01.05.2022 and child was with the respondent No.1
who is biological father of the child. There is no allegation against him that he is
not taking proper care of the child. The marriage between applicant and
respondent No.1 has already been dissolved. The applicant is illiterate lady, she
has not disclosed any source of income for better education and upbringing of
the son, therefore, at present the custody of child is liable to be continued with
the respondent No.1 which has been illegal handed over to the applicant.
9. In view of above, Misc. Criminal Case is dismissed. The custody of
child is restored to husband/respondent No.1. Applicant is having liberty to
approach the Family Court for custody of child.
(VIVEK RUSIA)
JUDGE
Praveen
