Rajasthan High Court - Jodhpur

Jyoti Songara vs State Of Rajasthan on 16 February, 2022

Bench: Vijay Bishnoi

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Misc(Pet.) No. 21/2022

Jyoti Songara W/o Shri Arvind Kumar, Aged About 30 Years, D/o Shri Mangi Lal, B/c Songara, R/o Road Number 6, Ward No. 7, Near Telephone Exchange, Padampur, District Sri Ganganagar (Rajasthan)

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. The Station House Officer, Anoopgarh, District Sriganganagar (Rajasthan)

3. The Superintendent Of Police, Sriganganagar (Rajasthan)

4. The Deputy Commissioner Of Police, Dwarka, Sector Number 19, New Delhi.

5. The Additional Commissioner Of Police, Dwarka, Sector Number 19, New Delhi.

6. Arvind Kumar S/o Shri Kaptan Singh, Aged About 33 Years, B/c Chauhan, R/o 148A-149A, Fage First Gali Number 5, Durga Vihar, Deendarpur, Nafazgarh, New Delhi.

7. Nirmala Devi W/o Shri Kaptan Singh, Aged About 52 Years, B/c Chauhan, R/o 148A-149A, Fage First Gali Number 5, Durga Vihar, Deendarpur, Nafazgarh, New Delhi.

                                                                ----Respondents


For Petitioner(s)         :    Mr. Trilok Joshi
For Respondent(s)         :    Mr. Mahipal Bishnoi, PP
                               Mr. D.S. Thind, Ms. Sapna Vaishnav
                               for complainant
                               Ms.    Jyoti    Songara, petitioner,
                               Mr. Arvind Kumar, Ms. Nirmala,
                               respondent Nos.6 and 7 respectively
                               along with petitioner's minor son,
                               present in person



             HON'BLE MR. JUSTICE VIJAY BISHNOI

                          Judgment / Order


                                           (2 of 6)                [CRLMP-21/2022]

16/02/2022

This criminal misc. petition under Section 482 CrPC has been

preferred on behalf of the petitioner being aggrieved with the

order dated 22.12.2021 passed by the Additional Sessions Judge

(Link Officer), Raisinghnagar, District Sriganganagar (for short 'the

revisional court'), whereby the revisional court while exercising

the revisional jurisdiction has stayed the order dated 07.12.2021

passed by the SDM, Anoopgarh, District Sriganganagar (for short

'the trial court').

Vide order dated 07.12.2021, the trial court has issued a

search warrant on an application under Section 97/98 CrPC

preferred by the petitioner before the trial court. In the aforesaid

application, the petitioner has alleged that custody of her minor

son, who was born on 11.08.2021 was forcibly taken by the

respondent No.6 on 20.9.2021, who is her husband. It is also

alleged by the petitioner that at present her minor son is in illegal

confinement of the respondent Nos.6 and 7, so search warrant

may be issued and her minor son be produced before the trial

court.

Learned counsel for the petitioner has argued that pursuant

to the search warrant dated 07.12.2021, the SHO, PS Anoopgarh,

Distt. Sriganganagar went to Delhi, where the respondent No.6

resides, but the search warrant could not be served upon them as

house of the respondent Nos.6 and 7 was locked. Again the search

warrant was issued on 20.12.2021 by the trial court, however in

between on 10.12.2021, the respondent No.6 has preferred a

revision petition before the revisional court and in that revision

petition, no notices were issued to the petitioner and on an

application preferred on behalf of the respondent No.6, the Link

(3 of 6) [CRLMP-21/2022]

Officer has taken up the matter and passed the impugned order

dated 22.12.2021. It is submitted that before passing of the order

dated 22.12.2021, no opportunity of hearing was given to the

petitioner.

It is further submitted that from the order dated 22.12.2021,

it is clear that the petitioner was informed on mobile when she

was not present in Anoopgarh but the revisional court has treated

the said information as sufficient and observed that service of

notice upon the present petitioner is sufficient.

Learned counsel for the petitioner has also submitted that

the revision petition filed by the respondent No.6 against the

interlocutory order is not at all maintainable, but despite that the

revisional court has granted indulgence and passed the impugned

order. Learned counsel for the petitioner has also submitted that

the petitioner's minor son is only six months of age and is required

to be taken care by his mother only.

It is also submitted that as per the provisions of Section 6(a)

of the Hindu Minority and Guardianship Act, 1956 (for short 'the

Act of 1956'), as a matter of course of custody of a minor, who

has not completed the age of five years, ordinarily be with mother.

Learned counsel for the petitioner while placing reliance on

the decision of the Hon'ble Supreme Court rendered in the case of

Yashita Sahu V. State of Rajasthan & Ors (Criminal Appeal

No.127/2020 decided on 20.01.2020) has argued that welfare of a

child is paramount consideration and a minor below the age of five

years should ordinarily be remain in the custody of his mother.

Per contra, learned counsel Mr. D.S. Thind has argued that

proceedings under Section 97/98 CrPC initiated at the instance of

the petitioner before the trial court are not at all maintainable. It

(4 of 6) [CRLMP-21/2022]

is submitted that minor son of the petitioner and the respondent

No.6 is in custody of the respondent No.6, who is also a natural

guardian and in such circumstances, it cannot be said that the

custody of the minor son with the respondent No.6 is illegal in any

manner. It is also submitted that the petitioner in a petition for

mutual divorce filed before the ADJ, Karanpur under Section 13-B

of the Hindu Marriage Act, has specifically agreed that custody of

the minor child will remain with the respondent No.6.

Learned counsel for the respondent No.6 has submitted that

in the above facts and circumstances of the case, it cannot be said

that the custody of the minor son of the petitioner and the

respondent No.6 is illegal or the minor is in illegal confinement of

the respondent No.6.

Heard learned counsel for the parties and perused the

material available on record.

Section 6(a) of the Act of 1956 clearly provides that custody

of a minor who has not completed the age of five years shall

ordinarily be with the mother.

The Hon'ble Supreme Court in the case of Roxann Sharma

Vs. Arun Sharma, reported in AIR 2015 SC 2232 has held as

under:

"Section 6 of the HMG Act is of seminal importance. It reiterates Section 4(b) and again clarifies that guardianship covers both the person as well as the property of the minor; and then controversially states that the father and after him the mother shall be the natural guardian of a Hindu. Having said so, it immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be wityh the mother. The significance and amplitude of the proviso has been fully clarified by decisions of this Court and very briefly stated, a proviso is in the nature of an exception to what has earlier been generally prescribed. The use of the word "ordinarily" cannot be over- emphasised. It ordains a persumption, albeit a rebuttable one, in favour of the mother. The learned

(5 of 6) [CRLMP-21/2022]

Single Judge appears to have lost sight of the significance of the use of word "ordinarily" in asmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment."

At present this Court is concerned about the welfare of the

minor son of the petitioner and the respondent No.6. It is not in

dispute that the minor son of the petitioner and the respondent

Nos.6 was born on 11.08.2021 and at present he has just

completed six months.

This Court is of the opinion that at this preliminary age, the

utmost requirement to the minor son is that he should be taken

care and given love by his mother only.

So far as the law points raised by learned counsel for the

parties regarding maintainability of the proceedings under Section

97 and 98 CrPC initiated at the instance of the petitioner before

the trial court and regarding the maintainability of the revision