Rajasthan High Court - Jodhpur
Abdul Rehman @ Adarman vs State Of Rajasthan ... on 27 March, 2023
Bench: Manoj Kumar Garg
[2023/RJJD/007568]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 753/2022
Abdul Rehman @ Adarman S/o Allana Khan, Aged About 38
Years, R/o Kundanpura, P.s. Sedwa District Barmer.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Khati W/o Ahmed, B/c Musalman, R/o Matte Ka Talla,
Tehsil Chouhtan District Barmer.
----Respondents
For Petitioner(s) : Mr. RJ Punia
For Respondent(s) : Mr. Vikram Sharma PP
Mr. Rakesh Matoria
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order
27/03/2023
The present misc. petition has been filed by the petitioner
against the order dated 02.02.2022 passed by Child Welfare
Committee (Bench) Barmer whereby, the custody of minor
daughter of petitioner was given to her maternal Grand mother.
Brief facts of the case are that the petitioner filed a
complaint under Section 97 & 98 Cr.P.C before Sub Divisional
Magistrate, Sedwa stating therein that petitioner was married with
Lada D/o Ahmed Khan. Out of the said wedlock, one child Farida
was born. Ten years back, his wife passed away and after her
death, his daughter has been living in his family. It is alleged that
minor daughter usually visited her maternal grandfather house
and on assurance that they will provide good education to her, she
was sent to her maternal grandfather house. However, the
[2023/RJJD/007568] (2 of 4) [CRLMP-753/2022]
maternal grandfather of his daughter is not sending back his
daughter to him and has illegally detained her.
On the directions of SDO, Sedwa directed the SHO, P.S.
Sedwa to produce the girl and after inquiry, the guardianship of
minor daughter of petitioner was handed over to the petitioner
vide order dated 27.01.2022.
The respondent no.2 thereafter, filed an application before
the Child Welfare Committee for restoration of guardianship of
minor daughter of the petitioner. The Child Welfare Committee
vide impugned order dated 02.02.2022 has granted the custody of
minor daughter to the respondent no.2. Hence, this petition.
Learned counsel for the petitioner submits that the impugned
order passed by the Child Welfare Committee is per se illegal
inasmuch the CWC has no jurisdiction to take away the
guardianship from the petitioner as the petitioner is the legal
natural guardian under the Mohammaden law. Therefore, the CWC
has passed the impugned order without any jurisdiction and same
is liable to be quashed and set aside. Learned counsel placed
reliance on the judgment of Allahabad High Court in the case of
Mt. Siddiqunnisa Bibi Vs. Nizamuddin Khan reported in AIR 1932
Allahabad 215.
Per contra, learned counsel for the respondent submits that
the proceedings initiated under Section 97 & 98 Cr.P.C. are not
attracted to the facts and circumstances of the case when the
child was living with her own maternal grandmother. The order
dated 02.02.2022 passed by the Child Welfare Committee is
absolutely justified inasmuch as the petitioner has married to
some other woman and the girl in her statement has categorically
[2023/RJJD/007568] (3 of 4) [CRLMP-753/2022]
stated that she is happily living with her maternal grandmother
and does not want to go with the father. therefore, the impugned
order is absolutely legal and justified which does not call for any
interference. In support of his arguments, the learned counsel for
the respondent placed reliance upon judgment of Rajasthan High
Court in the case of Jaishree Tiwari Vs. State of Rajasthan and
another reported in 2013 Cri.l.J 1610 and decision of Hon'ble Apex
Court in the case of Ramesh Vs. Smt. Laxmi Bai reported in 1999
Cri.L.J 5023.
I have heard learned counsel for the parties and carefully
gone through the material on record.
Admittedly, the minor child is living with her maternal
grandmother and clearly, the Executive Magistrate has no power
under Section 97 Cr.P.C to wrest the custody of a child from her
own maternal grandmother. Section 97 Cr.P.C is restricted in its
application for issuance of direction for search of a person
wrongfully confined. When the child is in the custody of her
maternal grandmother, there was no reason to believe that she
was under wrongful confinement. The Executive Magistrate had no
jurisdiction to decide the custody of a minor by directing the
custody of the child to be given to the petitioner. Moreover, the
minor girl who is 13 years old, in her statement has categorically
stated that she does not want to go with the father and she is
happily living with her maternal grandmother respondent no.2,
who is taking good care of her. Therefore, there is no illegality or
perversity in the impugned order passed by the Child Welfare
committee. However, the petitioner is granted liberty to file
regular application for custody of girl under the Guardians and
[2023/RJJD/007568] (4 of 4) [CRLMP-753/2022]
Wards Act which shall be decided by the competent court in
accordance with law.
The present misc petition having no force, is hereby
dismissed.
Stay application also stands disposed of.
(MANOJ KUMAR GARG),J
154-BJSH/-
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