Now the question arose whether in the circumstances will it speak about wrongful confinement of child on the part of the petitioner? The answer will be “No”. The person who carried the child to the hospital to fulfil the wish of her wife on 25.01.2019 and while the child was wilfully left by the respondent/wife in the custody of the petitioner because of her ill health since 2017, such a contention raised by the respondent can in no way be stated as a confinement. The learned Additional District Magistrate although initially had issued search warrant treating the same to be wrongful confinement by its order dated 28.01.2019 but in the order dated 26.02.2019 as indicated above in paragraph 2 of the order has itself held that there can be no question of “wrongful confinement by the second party” but strangely the learned court treated the matter as if dealing with the custody of the child and gave the custody of the child to the respondent/wife which is beyond the jurisdiction of Section 97 of Cr.P.C The provision of custody of child can be decided under Section 25 of the Guardian and Wards Act and the same cannot be adjudicated in the petition under Section 97 of the code. The only question which is to be decided while passing any such order by a court that there was certain wrongful confinement of a person while initiating proceeding. As has been discussed above, no matter of wrongful confinement has been made out as against the petitioner, who is the natural guardian/father of the child.
11. The Section 6 of the Hindu Minority and Guardianship Act provides that the natural guardian of any minor is the father and after him the mother.
12. As a corollary of above discussion it can be found that the impugned order dated 26.02.2019 passed by the learned trial court is wholly without jurisdiction. On the other hand, the order of the revisional court is also bad in law while the court has observed that any minor girl cannot be kept in a place against her will and will amounts to wrongful confinement. However, if the parties file a case for custody of the child, then the question of taking opinion of the child will arise as to with whom preferred to live, whether in the custody of her father or mother and that provision is not applicable in a proceeding under Section 97 of Cr.P.C
13. From what has been discussed above and in the circumstance narrated in the petition and the reply of the present petitioner before the court below it emerges that the child of the parties was kept in the custody of the petitioner by his wife voluntarily for her health problem and the same cannot be now contended as wrongful confinement and both the orders of the trial court as well as revisional court is devoid of merit and liable to be interfered. Accordingly, the orders passed by the trial court as well as revisional court is hereby quashed and set aside. It is however, observed that the parties may prefer appropriate application before the appropriate forum for custody of the child in proper manner, if so advised and till then, it is expected that the petitioner will honour the sentiment of the mother/respondent to facilitate her visit to her child as per convenience of the parties.
In the High Court of Gauhati
(Before Rumi Kumari Phukan, J.)
Sanjeev Kumar Singh v. O. Mema Devi
Crl. Pet. 626/2019
Decided on July 16, 2019
Citation: 2019 SCC OnLine Gau 2874
