MOHAMMED BUHARI Vs. RAMAMMADUNNIA ALIAS RAMADUNNISSA

JUDGEMENT

(1.) THIS criminal revision against the order dated 24.6.1985 passed by the learned Sub Divisional Judicial Magistrate of Pattukottai in Crl. M.P. No. 1692 of 1985, filed by the Respondent herein viz. Rahammadunnisa, under Section 97, Code of Criminal Procedure seeking restoration of her two female children from the custody of her husband, Mohammed Buhari, the Petitioner herein, has been filed under the following circumstances:

(2.) THE Respondent herein, Rahammadunnisa, married the Petitioner herein, Mohammed Buhari, in the year 1967 and they had three children viz. Haja Nazrudeen, Hyerunissa and Janathunissa. According to the Respondent herein, after the birth of the children, she was beaten by the Petitioner herein and was driven out of the house, as a result of which she was living with her children in her sister's house. Her further case is that on 5.4.1985 at 5 p.m. the Petitioner herein came to the place, where the Respondent herein lived and forcibly took away Hyerunnissa and Janathunissa, aged 5 and 7 years respectively, and thev are being kept along with a girl by name Habibunissa, with whom the Petitioner herein is leading a questionable life. As the lady Habibunissa is of a questionable character it will not be conducive to allow the children to stay with her As such the Respondent herein sought the help of the trial Court to issue a search warrant so as to take away the children from the custody of Habibunissa and deliver them to the Respondent herein. The Petitioner herein opposed the petition on the ground that since 1977 he was away from India and was sending sufficient funds for the Respondent herein and their children, but the Respondent herein deserted his children and is leading an immoral life with one Nazrudeen. As soon as the Petitioner came to know of the same, he came to India and searched for his wife and children on 19.2.1982. Since his wife, the Respondent herein, was not available, he divorced her on 24.2.1982 as per the provisions of the Mohammadan law, and retained custody of the children, and did not take them away forcibly Since then, the Petitioner is taking care of the children and they are attending the school. The Petitioner herein is entitled to the custody of the children and no offence is made out under Section 97, Code of Criminal Procedure.

(3.) LEARNED Counsel for the Respondent herein, conceded that Section 97 Code of Criminal Procedure will not apply to the facts of this case, but, however, urged that this Court should not stand on technicalities and prayed for issue of suitable directions with reference to the custody of the minor children, taking into consideration their paramount welfare. His further case is that the Petitioner herein is not living in India and has left the custody of the Children with the lady with whom he is leading a questionable life. It will not be conducive for the children according to the learned Counsel to be brought up in such an atmosphere and the Court should pass suitable orders for retention of the children in custody of the Respondent herein.