MOHAMMAD BADRUL ALAM Vs. RUBI ALIAS RUBI ALAM

JUDGEMENT

(1.) IN this revision petition the legality of the order dated 3.7.1996 passed by the learned Sub -Divisional Magistrate, Sadar, Cuttack in Criminal Misc. Case No. 663 of 1996 restoring the custody of the minors to the present opp. party, who was the petitioners before the learned S.D.M., is under challenge.

(2.) THE facts of the case which gave rise to this revision are as follows : The present petitioner is the husband of the opposite party. The petitioner married the opp. party on 29.12.1987 at Cuttack and both of them went to U.S.A. where the petitioner was serving. During the subsistence of that marriage, while they were living as husband and wife in U.S.A. they were blessed with three children namely Saira alam a daughter, Mohammad Zubair a son and Sadaf Alam a daughter who were respectively aged 6 years, 4/2 years and 3 years at the time of filing of the petition before the learned S.D.M. The present petitioner -husband (hereinafter referred to as the 'petitioner') with the opposite party -wife (hereinafter referred to as the 'opp. party') and the children came to Cuttack on 11.6.1996. As decided earlier between the petitioner and his wife, the petitioner with the children were to stay in his house at Mangalabag, Cuttack with his parents and the opp. party would reside for a week in the house of her parents at Pension Lane, Cuttack and during that period the petitioner would take the children for site seeing. Accordingly, the opp. party came to her parents house on 14.6.1996 morning and stayed there. On 22.6.1996 morning when she went back to her husband's house at Mangalabag, she found the house locked from outside and on enquiry came to know that the entire family had left for an outing and were expected back in that evening. On that day, she received a letter from her husband containing a pronouncement of Talaqu along with a cheque towards dowry dues and maintenance for the period of Iddat. Thereafter, when she went to the house of the petitioner, she was prevented by the petitioner from entering into the house. There she found that the children were kept confined in a room and were not allowed to meet her. The grand -mother of the opp. party was also sent to bring the children but she was also not allowed to enter into the house and see the children, though she could hear the cries of the children. The opp. party made a prayer on 28.6.1996 before the S.D.M. to issue a search warrant under Section 97 of the Code of Criminal Procedure for rescuing the children from the wrongful confinement of the petitioner alleging that the petitioner was preparing to leave India with the children. The petition was also supported with an affidavit. On receiving the petition and hearing the counsel, as the learned S.D.M. found prima facie case, issued search warrant to the I.I.C., Mangalabag for rescue and production of the three minor children. Pursuant to the warrant, the three warrantees were produced by the I.I.C. Mangalabag. The present petitioner as well as the present opp. party also appeared before the learned S.D.M. with their respective counsel. (The statement of the present opp. party was recorded and the parties through their counsel were heard). The petitioner resisted the prayer of the opp. party to take custody of the children on the ground that the opp. party has developed insanity and is under treatment. She is unable to take her own case and as such is also not capable of taking care of the children. The children have acquired citizenship of U.S.A. and have come to India with permission of the Government of U.S.A. for a short period of which it is necessary for them to go back to U.S.A. with him. It is also contended that since the children are citizens of U.S.A., the provisions of Cr.P.C. are not applicable to them. It is further contended that as the children are brought up in U.S.A. from their birth in a different social condition, it may not be possible for them again to adjust to that condition, if allowed to stay in India any longer. Their stay in India is likely to affect their future adversely. On behalf of the present opp. party, it was contended that she is an educated lady and is not a mental patient as alleged by the petitioner. It is also urged that under the Mohammedan Law, wife (mother) is entitled to the custody of the male child until the child attains the age of seven years and the female child until she attains puberty and such right continues even after the mother is divorced by the father of the children until she marries the second husband. To substantiate the stand that the opp. party is a mental patient, the petitioner filed some prescriptions to show that she was suffering and was under treatment not only at Cuttack, her native place, but also in U.S.A. The opp. party filed the letter containing the divorce notice sent by the petitioner. The learned S.D.M. after considering the submissions of both sides and examining the opp. party to ascertain about her mental state, ultimately gave the custody of the children to the opposite party considering her right to the custody of the children under the Mohammedan Law. Being aggrieved by the aforesaid order, this revision has been filed by the husband, the present petitioner.

(3.) IN connection with the first contention raised on behalf of the husband, it may be stated that according to the provision of Section 97 of the Code of Criminal Procedure, a search warrant cannot be issued automatically without application of judicial mind to the allegations made in the application. The expression 'reasons to believe' implies a belief in judicial mind arrived at after consideration of the available material without ignoring as far as possible the other side of the controversy. Before issuing a warrant for search, the Magistrate must have reasonable grounds to believe that the confinement in question is such that it amounts to an offence. The Magistrate should, therefore, exercise due caution and circumspection in issuing a warrant Under Section 97 of the Code. Under the Mohammedan Law father is the natural guardian. The mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. The father being the primary and natural guardian of his minor children and the right of custody of the mother and the female relations contemplated under the Mohammedan Law is subject to the supervision of the father which he is entitled to exercise by virtue of his guardianship. So the right to custody of minor does not carry with it all the powers which a guardian of the person of a minor has under the Guardian and Wards Act, 1890. In the above position of law, it cannot be said that in every case when a minor is not more than seven years of age, the mother shall be his legal guardian and unless the custody of the child is with the mother, the custody of the child with the father shall be deemed to be an offence within the meeting of Section 97 of the Code. Therefore, by remaining in custody of his own son or daughter the father will not be guilty of an offence such as illegal confinement so that Section 97 of the Code is attracted. In suitable cases, even during that age of the minor resort can be taken to the provision enabling the father to take custody of the minor. But the question of welfare of the child ultimately shall have to be decided by the Civil Court in an appropriate proceeding.