SHAM JAISWAL Vs. LAXMI BHANU

JUDGEMENT

(1.) This petition has been filed by the petitioner aggrieved by order dated 20-08-2009 (Annexure P-1) passed by the learned Revision Court i.e. 1st Additional Sessions Judge, Bilaspur, by which, the revision filed by the respondent has been allowed, setting aside order dated 28-01-2009 passed by the Sub Divisional Magistrate, Bilaspur, and the matter has been remanded for fresh consideration under Section 97 of the Cr.P.C. Brief facts of the case are that the respondent moved an application before the Sub Divisional Magistrate, Bilaspur under Section 97 of the Cr.P.C. for custody on the allegations that minor Somu @ Yashwardhan was born out of her wedlock, but, the petitioner has exploited her and taking undue advantage of the situation that he was engaged in the divorce proceedings, the respondent was harassed. On 29-04-2004, the petitioner forcibly took away the son of the respondent from her lawful custody and even though, the reports have been lodged in the Police Station, no action has been taken, till date. The Sub Divisional Magistrate, Bilaspur issued notice to the petitioner and the parties led their evidence, and thereafter, the Sub Divisional Magistrate, Bilaspur passed order on 28-01-2009 rejecting the application of the respondent. Aggrieved by the said order, the respondent preferred revision before the Additional Sessions Judge, Bilaspur. Vide order dated 20-08-2009 passed in Criminal Revision No. 104 of 2009, the learned Revisional Court set aside the order passed by the Sub Divisional Magistrate, Bilaspur and remanded the case for consideration afresh in accordance with law. Assailing the correctness and validity of the order passed by the Revisional Court, learned counsel for the petitioner argued that the order of the Revisional Court suffers from gross perversity, inasmuch as even though, the finding recorded by the Sub Divisional Magistrate, Bilaspur with regard to welfare aspect of the child, was not traversed, yet it has been recorded that the Sub Divisional Magistrate, Bilaspur has failed to mention specifically as to why, there was no need to issue search warrant under Section 97 of the Cr.P.C. Learned counsel argued that the Sub Divisional Magistrate, Bilaspur had rightly taken the view that as far as question of validity of marriage is concerned, proceedings under Section 97 of the Cr.P.C. are summary in nature and in those proceedings, the issue with regard to validity of marriage or existence of relationship or paternity could not be decided. Further submission of learned counsel for the petitioner is that the Sub Divisional Magistrate, Bilaspur has taken into consideration the welfare aspect of the child and after recording evidence of the parties and upon assessment of oral and documentary evidence available on record, arrived at the conclusion that the child is being taken proper care by the petitioner, and therefore, application of the respondent was rightly rejected. Therefore, the order of the remand passed the learned Revisional Court is wholly unwarranted and in excess of jurisdiction conferred under the law. He further submits that the present is not a case that the petitioner is an outsider. He claimed custody on the basis that he is the father of the child. In support of his submission, learned counsel for the petitioner relied upon the decision of the Supreme Court in the case of Ramesh Vs. Smt. Laxmi Bai, 1999 CrLJ 5023.

(2.) On the other hand, learned counsel for the respondent submitted that the respondent was never married nor had any relationship with the petitioner and the petitioner always exploited her. It is also submitted that the respondent has never admitted that the child-Somu was born out of the relationship between the petitioner and the respondent and on the other hand, it has been stated by the respondent that the child was born out of the wedlock between the respondent and her husband. It is next submitted that the learned Sub Divisional Magistrate has not enquired into this aspect of the matter and rejected the application without making proper enquiry. Learned counsel also argued that the respondent come out with material that when the child was forcibly taken out of custody of the respondent, a report was lodged in the Police Station. It is also submitted that the learned Sub Divisional Magistrate has not made proper enquiry with regard to welfare of the minor, because the minor was not being properly taken care of by the petitioner and he was unable to maintain, which is evident from the fact that an application for grant of maintenance was filed on behalf of the Somu through the petitioner. It is also submitted that though the Sub Divisional Magistrate has also taken into consideration some of the aspects with regard to education, which is being provided to the child, other aspects that the petitioner has contacted more than one marriage and has many other children to maintain and that the child is not in proper care of the petitioner, but the child was kept with some other lady, has not been taken into consideration by the Sub Divisional Magistrate. It is also submitted that in these circumstances, the Revisional Court was perfectly justified in setting aside the order passed by the Sub Divisional Magistrate and remand the matter for consideration afresh. Learned counsel for the respondent relied upon the decision of the Allahabad High Court in the case of Zahirul Hassan Vs. State of Uttar Pradesh, to submit that merely because the respondent has an alternative remedy, application under Section 97 of the Cr.P.C. cannot be rejected.

(3.) I have considered the submission made by learned counsel for the parties and perused the records.