D.N.UPADHYAY,J. - (1.) THIS Writ Petition (Criminal) has been filed for quashing of the order dated 1.8.2011 passed by the learned Chief Judicial Magistrate. Bokaro in Misc. Case No. 7/2011 whereby the learned Chief Judicial Magistrate. Bokaro has been pleased to issue search warrant under Section 97 of Cr. P.C in respect of the children namely Rishabh Singh (son). Tanya and Mahi (both daughters) who were born on 15.12.2005. 25.7.2007 and 3.11.2009 respectively as a result of the marriage solemnized between the respondent No. 2 Smt. Nidhi Singh and Shekhar Singh (son of the petitioner) and further directed to hand over the minor children to the respondent No.2 Smt. Nidhi Singh who is the mother of those children. 2. The brief facts of the case and reason behind passing of the impugned order are as under : - Smt. Nidhi Singh (respondent No.2) was married with Shekhar Singh (son of the petitioner Prakesh Singh @Shree Babu) on 21.1.2005 and after the marriage. Nidhi Singh started living with her husband and in -laws at Patna at their residence mentioned in this petition. Out of said wedlock. Nidhi Singh delivered three children namely Rishabh Singh (son), Tanya and Mahi (both daughters). But Nidhi Singh did not experience happy conjugal life and she was treated with cruelty and subjected to torture and assault on various occasions by various means for want of Maruti Esteem Car and other articles.
(2.) IT is also alleged that Rishabh Singh, after eight days of his birth was taken away from the lap of his mother Nidhi Singh (respondent No.2) and he was given to her only for the purpose of feeding. Sometimes Nidhi Singh was asked to reside at Patna and sometimes at Kolkata and sometimes at Mumbai. Her husband Shekhar Singh was also not taking care of her and she was subjected to ill treatment by him too. It is alleged that Nidhi Singh was driven out of her matrimonial home and since 29.4.2011. she has been living with her parent. Because the relation became strain due to demand of dowry and torture committed on her. Nidhi Singh rued a case vide Baridih P.S. Case No. 31 of 2011 under Sections 498 -A, 323, 504/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against her husband and in -laws. On the other hand husband Shekhar Singh also filed suit for seeking divorce and thus the litigation started between the parties and cases were instituted at the places suitable to them. Since Nidhi Singh was deprived of her children who were forcibly kept by the petitioner and his family members a petition under Section 97 of Cr. P.C. was filed before the learned Chief Judicial Magistrate Bokaro and the case was registered as Misc. Case No. 07 of 2011. After appearance of the parties and granting hearing to them the impugned order was passed and hence this writ petition before this Court.
(3.) THE marriage between Shekhar Singh and Nidhi Singh (respondent No.2) was solemnized on 21.1.2005 and out of the wedlock aforesaid three children were born and petitioner happens to be grand father of those children. It is contended that learned Chief Judicial Magistrate. Bokaro has no occasion to pass impugned order on the basis of a petition filled by the respondent No.2. It is contended that aforesaid three children were left by the opposite party No. 2 and she came back to her parent's house at Bokaro. The children are living with their father who happens to be natural guardian and the children are being taken care of by the .grand parents and other family members of Shekhar Singh. The learned Chief Judicial Magistrate has travelled beyond jurisdiction by passing the impugned order under Section 97, Cr. PC and also by deciding custody of the children. By referring to Section 97. Cr. P.C. it was submitted that if any District Magistrate. Sub Divisional Magistrate or the Magistrate of 1st Class has reason to belief that any person is confined under such circumstances that confinement amounts to an offence he, may issue a search warrant. In the instant case, confinement amounts to an offence, was highly lacking because the children were residing 'with their natural guardian i.e. father and his family members. Keeping the children by the father, under no stretch of imagination, could be considered a wrongful confinement and, therefore the learned Chief Judicial Magistrate, Bokaro has no jurisdiction to pass any such order considering facts and circumstances of the present case. The jurisdiction to decide custody of children or to appoint guardian against minor, is governed by "Guardianship and Wards Act. 1980" and "Hindu Minority and Guardianship Act, 1956" for which the District Judge/Family Court is having jurisdiction. The learned Chief Judicial Magistrate has gone to the extent of deciding custody of the children which is inherently wrong and therefore, the impugned order is liable to be set aside. It was further contended that the petitioners and his family member are taking all care and caution of the children and they have been admitted to Schools of good repute and all sorts of learning facilities and amenities are provided to them. All the family members of the petitioner ace very much keen and. interested in up -bringing the children and all sorts of good medical care are also provided to them. The paramount consideration is the welfare of the children to decide custody and the balance lies in favour of the petitioner and, therefore, in that respect too, the impugned order suffers from illegality. The petitioner has filed further supplementary affidavits in support of the contention made in course of hearing of this writ petition. The respondent No. 2 Nidhi Singh herself has stated in the petition that she is fully dependent on her parent and the family consists of many members including unmarried sisters. The father of respondent No.2 is the only earing member and, therefore, it is not possible for Nidhi Singh to maintain her three children. She is not employed and she does not have her independent source of income and, therefore, the future of the children are not safe and bright if they will be handed over to her. The petitioner has relied on the following judgments : (I) Ambeshwar Atmaram Sonar v. Nandabai D/o. Kashinath Sonar and another, 2010 (5) Mh L.J. (II) Atanu Chakraborty v. State of West Bengal and another, 2010 (2) CHN (CAL) 556; (III) Md. Abdur Rafique v. Mostt. Sakila Bibi, 2004 (3) CHN 174 C.R.R. No. 1808 of 1994; (IV) Sudarshan Sau and another v. State of West Bengal and another, 2007 (2) CHN 886 C.R.R. No. 331 of 2007; (V) Vishal Jivan Jogure v. Smt. Megha Visha Jogure, 2005 (4) Mh LJ 54. On the other hand, the respondents -State of Jharkhand as well as Nidhi Singh (respondent No.2) have vehemently, opposed the arguments advanced on behalf of the petitioner. If was submitted that it is incorrect to say that Nidhi Singh left her children and returned back to her parent's house. The fact is that she was treated with cruelty and subjected to torture for want of more dowry demanded in terms of car, cash and valuables. She was not allowed to spend happy conjugal life with her husband. Her minor children were taken from her lap and the children were debarred from getting love and affection from their mother. The supplementary affidavit filed by the petitioner .indicates that Rishabh Singh, son of opposite party No.2, is living with his aunt (father's sister - FUWA) at Mumbai and the boy is suffering from mental illness, which is apparent from the medical certificate enclosed. The petitioner himself has admitted that Rishabh has been given in adoption to his aunt (FUWA) though that aunt is not entitled to take a child in adoption. She is a divorcee and working in a Company and having no time to look after the child Rishabh. She is also having her own child from her husband. It is known to everyone that a child can be given in adoption only with the consent of parent and it goes without saying that Nidhi Singh had never given her consent to give Rishabh in adoption to her aunt (FUWA). Thus, it is clear that contention made by the petitioner is incorrect that the children are living with their father Shekhar Singh who is the natural guardian. It was pointed out that Tanya and Mahi were born on 25.7.2007 and 3.11.2009 respectively whereas Nidhi Singh was driven out from her matrimonial home on 29.4.2011. which indicates that the third daughter was hardly aged 1 year 4 months at the relevant point of time. The another supplementary affidavit filed by the petitioner indicates that Mahi Singh and Tanya were admitted to the Schools when they were hardly aged about 2 years. This also indicates that the petitioner and his family members are not having time to look after the children and the basic need of the girl child is not provided to them. When the girl child need care love and affection of her mother they were asked to go to School and sending School to the children of that age certainly amounts torture and', inhuman conduct and it would be not out of mention to say that it is a kind of child abuse. Welfare of child cannot be weighed by money and it is incorrect to say that only rich and influential persons are capable of taking care of their children. It was further submitted that in different judgments the High Courts have considered that sending child of tender age to School is a case of childhood lost and lost childhood children in future suffers with psychological problem and in the case at hand, it happened with Rishabh who is facing speech problem and other psychological deficiencies. It was fairly submitted that there are divergent view of different High Court with regard to use of Section 97 in such matters. Some of the High Courts have deprecated invoking Section 97. Cr.P.C. to decide custody of children but in some cases some of the High Courts have considered that even if the children are living with their father or mother and the children are not being taken care of, the order passed under Section 97, Cr. P.C. can be sustained. In this regard, judgment reported in 1994(3) SCC 698 has been referred in which similar question were involved and the custody of the minor child aged about 8 years, was decided. The aforesaid child was denied with the loving care of his mother and thus, the Hon'ble Supreme Court, in conclusion, has granted custody of the child in favour of the mother. He has further relied in the following judgments : 1981 (2) SCC 277; 2001(5) SCC 247; 2005(5) SCC 359; 2003(3) PLJR 60; 2009(1) SCC 42; (VI) 1992 Cr. Law Journal 1688; (VII) 1998 Cr. Law Journal 230; (VIII) AIR 2001 Cal 88; (IX) AIR 1978 M.P. 24. (X) 1983 Cr. Law Journal 98; (XI) In the case W.P. (HB) No. 388 of 2010 (before Jharkhand High Court) At the conclusion, it was submitted that Hon'ble Apex Court as well as different High Courts have considered the welfare of the child while deciding their custody in some of the cases, the order passed under Section 97, Cr.P.C. was upheld but in some of the cases petition filed under Article 226 of the Constitution of India was considered to decide the issues with regard to custody of the children.;