KOKJE, J. - (1.) TWO pregnant women - Smt. Kanchan Devi wife of Hari Narain and Smt. Gulab wife of Handali got admitted in a maternity facility run by one Pushpa Bhatnagar, a Nurse. On 6. 11. 99, both of them delivered. It is alleged by Harinarain that his wife Smt. Kanchan Devi was told that she as well as Smt. Gulab had delivered a female child each. However, lateron it transpired that one of the children was a male child and that was in the custody of Smt. Gulab wife of Handali. On 9. 11. 99, an FIR was registered with the Police Station Nangal Rajawatan, District Dausa, by Hari Narain alleging that the male child was in fact delivered by his wife Smt. Kanchan Devi but it was exchanged with the female child born to Smt. Gulab, by the Nurse. On the FIR being lodged, case was registered by the police and investigation started.
(2.) AN application u/sec. 97 Cr. P. C. was moved by Hari Narain before the Additional Chief Judicial Magistrate, Dausa on 15. 1. 2000 which was not entertained holding it to be not maintainable. However, again an application was made on 17. 1. 2000 under Sec. 97 Cr. P. C. which was entertained by the Magistrate and on 21. 1. 2000, it was rejected and a revision application was filed against the order of rejection of the application, before the learned Sessions Judge, Dausa who rejected the revision application vide his order dated 16. 2. 2000. Against the rejection of the revision petition. Harinarain and Smt. Kanchan Devi preferred a petition u/s. 482 Cr. P. C before this Court which was registered as S. B. Criminal Misc. Petition No. 117/2000. On 8. 6. 2000, Hari Narain moved an application under the Guardian and Wards Act for a declaration that he was the guardian of the male child in custody of Smt. Gulab wife of Handali and Handali son of Gyarsilal. On 5. 7. 2000, an interlocutory application was filed in this case for interim custody of the child. On 26. 7. 2000, this application for interim custody of the child was allowed and the custody of the child was handed over to Hari Narain and his wife Smt. Kanchan Devi on 15. 8. 2000. In between, on 31. 7. 2000, S. B. Civil Revision Petition No. 806/2000 was filed and stay of the order dated 26. 7. 2000 was prayed for. On 4. 8. 2000, the revision petition was put up for admission, the lawyers were on strike and therefore none appeared for the petitioner. On 8. 08. 2000, the case was fixed again but could not reach hearing stage. On 16. 8. 2000 when it was fixed before the court, it appears that a day's time was sought and the case came up again on 17. 8. 2000. The court directed the case diary of the case to be produced and directed the Investigating Officer to attend the court personally on 21. 8. 2000. On 21. 8. 2000, since the earlier order was not complied with, the Court directed issue of notice of contempt to Supdt. of Police, Dausa and the Investigating Officer and directed the case to be fixed on 6. 9. 2000. On 6. 9. 2000, the revision petition was admitted for hearing and operation of the order dated 26. 7. 2000 was stayed. However, since the order dated 27. 7. 2000 had already been complied with on 15. 8. 2000 the stay order was meaningless. On 7. 9. 2000, it was directed that the revision petition deserved early final disposal and be fixed for final disposal. Shri S. K. Gupta, Advocate in his individual capacity attracted the attention of the Court to the fact that though the parties were fighting for the male child, nobody was owning the female child said to have been exchanged with the male child. The Court, therefore, directed that the District Magistrate, Dausa shall take appropriate steps for the welfare of the female child as both the parties were disowning the female child. On 14. 9. 2000, when the case was listed in the court, Shri M. M. Ranjan, learned counsel for Hari Narain informed that for the custody of the same child, S. B. Criminal Misc. Petition No. 117/2000 was also filed. Orders were, therefore, sought from Hon'ble the Chief Justice so that both the cases could be heard together, and ultimately, these two cases S. B. Criminal Misc. Petition No. 117/2000 and S. B. Civil Revision Petition No. 806/2000 were heard together and are being decided by this common order. In the criminal case, an order was sought from the Magistrate u/sec. 97 Cr. P. C. The Magistrate rejected the application observing that there was no case of illegal detention of the child and the child was known to be in custody of Smt. Gulab. The learned Sessions Judge, in the revision petition, also was of the view that Sec. 97 Cr. P. C. was not applicable to the case. He was also of the opinion that on the basis of the medical report, the custody of the child could not be given to Hari Narain and Smt. Kanchan Devi because the conclusions drawn on the basis of matching blood groups were correct in about 80% cases only and it cannot be taken to be conclusively proved that the male child belonged to Harinarain and Smt. Kanchan Devi. The Court also observed that the DNA test could assure of more certainty. The Court was also of the view that the DNA test should be conducted and the State cannot take a stand that it is costly and therefore, it would not be conducted. Ultimately, the Court found that change in custody of the Child could not be ordered only on the basis of blood test. The learned Sessions Judge, thus dismissed the revision application. However, in a case filed under the Guardian and Wards Act, the same learned Sessions Judge as Distt. Judge passed an order dt. 26. 7. 2000 giving custody of the child to Hari Narain and his wife Smt. Kanchan Devi on the basis of blood grouping. This was done on the basis of a report dt. 12. 5. 2000 submitted by the Forensic Science Laboratory and the earlier report made by the Medical Board constituted at Dausa, which opined that the male child was that of Harinarain and Smt. Kanchan Devi and not of Handali and Smt. Gulab. The question to be considered in the criminal case is as to whether the case was covered prima facie by Sec. 97 Cr. P. C. and as to whether interim custody of the child could be given by the criminal court in the circumstances of the case. Sec. 97 Cr. P. C. provides that when the Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant, and the person to whom such warrant is directed may search for the person so confined, and as a result of the search, if the person is found, he shall be immediately taken before the Magistrate, who shall make such order as in the circumstances of the case seems proper. In the circumstances of the present case, no search as such was necessary because the male child was openly in the custody of Smt. Gulab and her husband Handali. The allegations were that the male child was exchanged with female child, which is yet to be proved. If in such circumstances, the Court concluded that there was no reason to believe that the male child was confined and that such confinement amounted to an offence, no fault can be found with the conclusion. To my mind, Sec. 98 Cr. P. C. was the appropriate provision under which prayer should have been made. Section 98 Cr. P. C. provides that upon a complaint made on oath, of the abduction or unlawful detention of a woman or a female child under the age of eighteen years. for any unlawful purpose, a competent Magistrate may make an order for the immediate restoration of such woman to her liberty or of such female child to her husband, parent, guardian or other person having the lawful charge of such child. Since no such complaint was made on oath setting out that the child was unlawfully detained for an unlawful purpose, there was no question of the Magistrate invoking the provisions of Sec. 98 Cr. P. C. No fault could be found, therefore, with the non invoking of powers u/sec. 97 or 98 Cr. P. C. by the Magistrate and the learned Sessions Judge. Similarly, it cannot be said that the Sessions Court committed any error in not granting custody of the male child even before the paternity was proved. Actually, the burden to prove that the male child was born to Smt. Kanchan Devi and not to Smt. Gulab and that the Child was exchanged immediately after the birth, was upon Hari Narain and Smt. Kanchan Devi. It could not have been presumed by the court that the allegations are true even before the trial is concluded and the final decision is given by the Magistrate.
(3.) SO far as the Civil Revision Petition is concerned, before granting interim custody of the child, the Court had to examine whether there was a prima facie case of holding that the male child was delivered by Smt. Kanchan. Admittedly, immediately after birth, the child was in the custody of Smt. Gulab. He continued to be in her custody from 6. 11. 1999 to 15. 8. 2000 - for almost a period of nine months. The main application u/sec. 7 of the Guardian and Wards Act, 1890 is yet to be decided on merits. The application for temporary custody of the male child could have been moved u/sec. 12 or 25 of the Act. It appears that the Court has made this order u/sec. 12 of the Act. In any case, what could have been the paramount consideration before the Court was the welfare of the minor. When once the learned District Judge had decided as the Sessions Judge that without DNA test it could not be said with any amount of certainty that the male child belonged to Harinarain and his wife, he should not have concluded even tentatively, on the basis of another report by the Forensic Science Laboratory, that even without DNA test, it could be concluded safely that the male child belonged to Hari Narain and his wife. Going back on his own decision as a Sessions Judge, the Distt. Judge has concluded that the DNA test was not essential in the case. Moreover, the learned Distt. Judge did not consider the fact that the child was in the custody of Smt. Gulab and was being fed by her right from 6. 11. 1999 till he decided the matter on 26. 7. 2000. Thus, for more than eight months, the child was in the custody of Smt. Gulab and heavens would not have fallen if the child remained in the custody of Smt. Gulab till the trial was concluded. The Court forgot that it was not disposing of any movable property like a motor cycle, or a tractor, while giving interim custody of the child to one or the other lady. Rightly or wrongly, if the child had continued right from the date of birth in the custody of Smt. Gulab, it was in the interest of the child to continue in her custody till the disposal of the case. The court could also have directed DNA test being conducted at an early date and with the help of that, and such other evidence as was led before it, the Court could have decided finally the application u/sec. 7 of the Guardian and Wards Act. A further complication has arisen by the custody of the child being handed over in execution of order dated 26. 7. 2000 passed by the Distt. Judge. The custody of the child was handed over on 15. 8. 2000 and admittedly, from that date onwards, the child is in the custody of Smt. Kanchan. The child is in the custody of Smt. Kanchan for over two months now. This could have been avoided if the revision petitioner had taken care to obtain orders on the stay application at an early date. Though within five days of the passing of the order, the revision petition along with the stay petition was filed, no efforts were made by the revision petitioner for getting the case heard at the earliest and the result was that before the stay application could be decided, the custody of the child was handed over to Smt. Kanchan. In the circumstances of the case, looking to the fact that the paramount consideration is the welfare of the child, it would not be proper to disturb the status quo as it stand today, again. Two months have passed since the custody has been given to Smt. Kanchan. There is no point in taking back the child from her custody again and putting it in the lap of Smt. Gulab again. The child cannot be tossed from one lap to the other like a shuttle cock. In the circumstances, the only direction which could be given is to dispose of the main petition under Section 7 of the Guardian and Wards Act expeditiously. ;