HIMMAT S O KASHINATH PATIL Vs. MANGALA

JUDGEMENT

(1.) PETITIONER and respondent No. 1 married each other in the year 1982. But as the destiny would have it, this happy wedlock was not to last long. Though on 14th August 1984, Swapna - a daughter was given by God to both, parties wanted to separate and on 2-1-1990 a divorce by the mutual consent was effected. In the deed of divorce, it was agreed that father - petitioner in this revision application - would be responsible for maintenance, education and marriage of Sapana, and the child was given in custody of the father. But it was agreed that on the occasion of festivals and after each two months father will bring the minor to mother and if father ill-treats Sapana, then mother will take her custody by legal means. It appears that even this arrangement did not work. It is alleged that in May 1990, the respondent mother took away Sapana and did not return her to the father. Therefore, father was constrained to file an application bearing Misc. Criminal Application No. 249 of 1990 in the Court of Chief Judicial Magistrate, Jalgaon on 6-8-1990. This application purporting under section 97 of the Code of Criminal Procedure prayed for a warrant to release minor Sapana from the possession of her mother. It was contended by the wife that when the visited the house of the father of the minor child was found weeping and was not fed. Therefore, wife decided to continue with the custody of the child. Both father and mother have shown concern for the education and it was pointed out to the learned Judicial Magistrate that both of them have admitted minor child in different schools at Malegaon and Jalgaon. In furtherance of the warrant child was brought before the Court and the learned Chief Judicial Magistrate, Jalgaon was pleased by order dated 10-8-1990 to direct that the custody of the child be given to the father being person lawfully entitled to the custody.

(2.) AGGRIEVED by this order, a Criminal Revision bearing No. 384 of 90 was filed before the learned Sessions Judge, Jalgaon by the wife and the learned Sessions Judge holding that application under section 97 would not be a proper remedy to redress grievance of the father, who wanted custody of the child, was pleased to allow application quashing the order passed by the learned Judicial Magistrate in Misc. Civil Application No. 249 of 90 and directed that the custody of the child Sapana be given to the mother - revision petitioner. This order dated 9-1-1991 passed by the Sessions Judge, Jalgaon has been challenged in his revision application by the father.

(3.) SHRI S. R. Barlinge, learned Counsel for the petitioner, submitted that search warrant would be a proper remedy in the instant case. Since petitioner - father was entitled for custody of the child Sapana and she was wrongfully held up by her mother without a legal authority. According to him, divorce deed dated 2-1-1990 goes to show that parties had agreed that the custody of the child should remain with the father. Shri barlinge further relied on the provisions of The Hindu Minority and Guardianship Act, 1956, particularly, on section 6 in support of the proposition that the father is entitled for the custody being a natural guardian of a Hindu minor.