SONAM DEVI Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The petitioner, mother of child Anmol Jaiswal, is before this Court assailing the order passed by the Sub-Divisional Magistrate, Ambikapur handing over custody of the child to respondent No. 5 in purported exercise of powers under Section 97 of the Cr. P.C.

(2.) The petitioner was married with Ashok (since deceased) on 30-6-2007. Son Anmol, presently aged less than 7 years, was born from the wedlock on 14-4-2008. Ashok died at Kedarpur, Ambikapur on 29-10-2011. The petitioner, a young widow aged about 25 years, decided to remarry with Sanjay Choudhary. Respondent Nos. 5 to 7 moved an application before the Sub-Divisional Magistrate, Ambikapur under Section 97 of the Cr. P.C. seeking search warrant, releasing boy Anmol from the captivity of his mother i.e. the petitioner and handing over his custody to them. In course of enquiry on the said application, the Magistrate found that the petitioner's husband has not legally divorced from his previous wife and has two children from his first marriage and on this basis, he concluded that it will be for the benefit of the child if he remains in the custody of his grandmother and uncle, the respondent Nos. 5 and 6 respectively.

(3.) Learned counsel for the petitioner would submit that the custody of minor by parents can never be treated as wrongful confinement, therefore, at the very inception, the Magistrate had no jurisdiction to issue search warrant and thereafter handover custody of boy to a person who is not the natural guardian in terms of Section 5 of the Hindu Adoptions and Maintenance Act.