Looking into the factual background of the case, I find that the petitioner/father removed the child from the custody of the O.P./mother by using physical-force and that the child was a suckling baby of a tender age of 18 1/2 months only. This act on the part of the father of placing the child beyond the reach of the mother, in such circumstances tantamount to confinement of the child giving rise to an offence. There is no scope for any controversy to accept the proposition that it is the subjective satisfaction of the Magistrate to invoke the power under Section 97 of the Court.
It is needless to say that where the question of custody of the minor is involved the type of remedy proceeded with by an applicant whether by way of an application under the Guardians and Wards Act, or by way of an application under Section 97, Cr.P.C. or by way of a writ of habeas corpus is not relevant. In all such situations, the paramount consideration is the welfare of the minor. Therefore, when the petitioner/father had forcibly removed his child of 18 1/2 months from custody of his mother and the mother has filed application under Section 97 of the Criminal Procedure Code and the ingredients of such section were satisfied, the mother was entitled to the speedy remedy available to her under the law because of the tender age of the child and the exigency of the situation that demanded restoration of the custody of the child to the mother at the earliest possible moment. The mother cannot be denied relief in summary proceedings taken by her and it will be unjust and against the welfare of the child also to ask her to take recourse to the relevant provisions available under the Guardians and Wards Act. Therefore, it is apparent that the Learned Chief Judicial Magistrate rightly exercised jurisdiction vested upon him and no fault can be found with such orders passed by him.
In this context, I think it appropriate to mention that the Hon'ble Supreme Court in the case of Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, reported in MANU/SC/0314/1981 : AIR 1982 SC 792 : 1982 Cr LJ. 580 has held that -"It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party....."
IN THE HIGH COURT OF CALCUTTA
Decided On: 20.01.2015
Appellants: Amber Majumdar
Vs.
Respondent: The State of West Bengal and Ors.
Vs.
Respondent: The State of West Bengal and Ors.
Hon'ble Judges/Coram:Shib Sadhan Sadhu , J.
Citation: 2015CriLJ1510
