SK RAZAK Vs. RIYASATHBI

JUDGEMENT

(1.) THE applicant husband hag filed this revision application praying that the order passed by the Judicial Magistrate First Class, 8th Court, Nagpur, in Criminal Case No. 6-A of 1973 confirmed in Criminal Revision No. 73 of 1973, be quashed and the application made by the non-applicant wife under Section 100 of the Criminal Procedure Code be remanded to the Court of the Magistrate for recording evidence and passing adequate orders as the Magistrate would deem fit after hearing the parties, The facts in brief are as under:

(2.) IT is the allegation of the non-applicant mother that on 5-1-1973 at about 7 a. m. the applicant came with some of his friends, made a row, assaulted the mother-non-applicant and took away the child forcibly from her custody. She filed a report with the police but no action appears to have been taken while the version of the applicant-husband was that he was often going to see his child because he was in constructive custody of the child and on 5-1-1973 he had gone to see the child. The child expressed a desire that he would accompany him (the father) and, therefore, the applicant took him. There were the rival versions. ,

(3.) IT is seen from the record that on 9-3-1973 an application under Section 100 of the Criminal Procedure Code was given by the mother-non-applicant against the applicant in the Court of the Judicial Magistrate First Class, 8th Court. Nagpur. The show cause notice was issued to the applicant who was a non-applicant in that application. Pursuant to the show cause notice he has given his say. It appears that the learned Magistrate, then presiding over the Court did not record the evidence but after hearing the parties, issued order of search warrant. Feeling aggrieved by that order the present applicant had filed a revision application in the Court of the Sessions Judge of Nagpur. However, the same was dismissed and thereafter the proceeding was again sent back to the Magistrate for passing orders as per the latter part of Section 100 of the Criminal Procedure Code. After the papers were received, after hearing the parties, the learned Magistrate passed an order in his discretion and directed the applicant who was the non-applicant to deliver the child to the mother as the child was below the age of 7 years. The learned Magistrate while passing this order had three circumstances before him. One was that the child Rashid was below 7 years. As such the mother though not a natural guardian under the Mohomedan Law was entitled to the custody according to Mohomedan Law. The second was that the husband had taken the second wife, after divorcing the non-applicant wife. The second wife was residing with him. The learned Advocate for the applicant contended before me that there was a grand-mother i. e. , the mother of the applicant residing with him and she was looking after the child. Whatever that may be the learned Magistrate came to the conclusion that between the natural mother and the step mother, the natural mother would properly bring up the child. The third circumstance which was before the Magistrate was that the maintenance decree was passed against the applicant husband to give Rs. 15/- per month to the child. In order to avoid the payment of that decree the father forcibly took away the child from the custody of the mother. Considering these three circumstances, the learned Magistrate passed the order that the custody be given to the natural mother. Feeling aggrieved, the applicant husband filed a revision application in the Sessions Court being No. 73 of 1973. That was heard by the Second Extra Additional Sessions Judge Mr. M. S. Pathak who dismissed the revision application. The learned Additional Sessions Judge has referred to the history of the litigation. He has also considered the provisions of the Mohammedan Law and had taken into consideration the two authorities which were cited by the learned Advocate for the applicant before him and which are also cited before me. He held that there was no provision under Section 100 of the Criminal Procedure Code to record evidence, it being a summary remedy and the order which has to be passed under the latter part of Section 100 is a discovery order. The learned Additional Sessions Judge felt that the discretion was properly exercised by the Magistrate. He, therefore, did not interfere with the order and rejected the application. Feeling aggrieved, the present revision application has been filed.