PURUSHOTTAM WAMANRAO THAKUR Vs. WARSHA

JUDGEMENT

(1.) WHETHER the institution of the proceeding under section 97 of the Cr. P. C. directing the applicant No. 1 Purushottam Thakur to produce and hand over the minor children to the non-applicant No. 1 Smt. Warsha w/o Narayan Thakur, was legal, just and proper? This is the only question to determine.

(2.) THE facts giving rise to decide the question raised by the applicants are as follows: the applicant No. 1 Purushottam Thakur is the father of the applicant No. 2 Narendra Thakur. The non-applicant No. 1 Smt. Warsha is the wife of the applicant No. 2 Narendra Thakur. The non-applicants No. 2 and 3 viz. Ku. Chinmaya and Akshay are the daughter and son of the applicant No. 2 Narendra and non-applicant No. 1 Smt. Warsha. Therefore, the applicant No. 1 Purushottam Thakur is the father-in-law of the non-applicant No. 1 Smt. Warsha and the grand father of the non-applicants No. 2 and 3 Ku. Chinmaya and Akshay. Out of the wed-lock the applicant No. 2 Narendra and non-applicant No. 1 Smt. Warsha have 3 children. Ku. Chinmayas date of birth is 14-6-1985, Akshay the non-applicant No. 3s date of birth is 29-4-1987 and the 3rd one Pralhad born on 14-12-1989. The applicant No. 2 Narendra Thakur is an Engineer working in the service of State. He and his wife Smt. Warsha were living together at Ratnagiri where Narendra was posted as an Engineer. The dispute arose between the husband and wife. We need not go in details about their rival contentions of strain relations. It is an admitted fact that on 17-10-1989 the non-applicant No. 1 Warsha was reached to her fathers house by the applicant No. 2 Narendra Thakur. At that time, they had a daughter viz. Chinmaya aged about 5 years and a son Akshay aged about 2 years. Smt. Warsha was also due for 3rd delivery. According to Smt. Warsha, on 17-10-1989, her husband forcibly took away Ku. Chinmaya and Akshay from her custody inspite of her resistance. Shri Narendra the husband of Smt. Warsha assured her that he would return the children to her on 3-11-89 i. e. after Diwali Festival. The children not being returned, Smt. Warsha sent her brother to Daryapur on 8-11-89 where both the children (non-applicants 2 and 3) were lodged with their grand father i. e. the applicant No. 1. When the brother of Smt. Warsha asked the applicant No. 1 to allow the non-applicants Nos. 2 and 3 to accompany him to Mangrulpith, the applicant No. 1 declined to do so and driven him out. It is, thus, crystal clear that though the applicant No. 2 Narendra--father of non-applicants No. 2 and 3 took both the children on 17-10-89 instead of keeping them with him, Shri Narendra kept the children at Daryapur with his father. Smt. Warshas father received a letter on 3-1-90 and telegram on 14-1-90 from the applicant No. 2 Narendra Thakur to the effect that Smt. Warsha should not go to Daryapur. Thereby, she was prevented from approaching her children and taking the custody of them. Being the mother of the minor children, under Law, she is entitled for the custody of her minor children. She was prevented and the children were confined in the custody of the applicant No. 1 i. e. the father-in-law of Smt. Warsha. Smt. Warsha filed an application under section 97 of Cr. P. C. before the Judicial Magistrate, First Class, Mangrulpir, contending that the children were wrongfully confined by Shri Purushottam--the grand father of the children. The learned J. M. F. C. , Mangrulpir after hearing, issued search warrant directing Shri Purushottam Thakur to produce the children before the Court. In pursuance of the search warrant, the children were produced before the Court on 20-1-90 by the Police. On 23-1-90 Shri Purushottam filed the reply denying the allegations levelled in the application particularly forcibly taking away and wrongful confinement of the children. Shri Purushottam Thakur specifically contended that the children are taking education under his supervision and utmost care is being taken as he himself is well educated person, serving as a Jr. Lecturer at Daryapur. He specifically contended that in the interest and welfare of the children, they should remain with him. After hearing the parties, the learned J. M. F. C. Mangrulpir passed the order on 25-1-90 holding that the wrongful confinement was not made out and the application under/section 97 of Cr. P. C. was not tenable. On 20-1-90 i. e. before the reply was filed by Purushottam Thakur, the learned J. M. F. C. , had directed that the children should remain in custody of mother---Smt. Warsha during the pendency of that application. However, while the order was passed on 25-1-90, Smt. Warsha was directed to give the custody of the children to the father of the children viz. Narendra Thakur. Inspite of the order, as the custody of the children was not given to the applicants, they filed an application on 29-1-90 before the J. M. F. C. , Mangrulpir. But, the application was rejected by an order dated 30-1-90 as not being maintainable. Smt. Warsha being aggrieved by the order dated 25-1-90 passed by J. M. F. C. , Mangrulpir in M. J. C. No. 11 of 1990, preferred a Criminal Revision Application No. 24 of 1990 which was allowed by the Addl. Sessions Judge, Washim vide order dated 11-5-90. The applicants also preferred the Criminal Revision Application No. 14 of 1990 against the order of rejection of their application on 30-1-90, but the same was rejected by the order dated 11-5-90. The Criminal Revision Applications No. 14 of 1990 and 24 of 1990 were decided by the common order by the learned Addl. Sessions Judge, Washim.

(3.) BEFORE hearing the learned Counsel for the parties, I initiated reconcilialion proceeding requesting both the learned Counsel of the parties to keep their clients present in the Court. On 12-9-91 Smt. Warsha with her children and other relations was present in the Court. However, none of the applicants were present on that day. On the request of Mr. Palshikar, the learned Counsel for the applicants, the case was adjourned to 13-9-91. On 13-9-91, the applicant No. 1 Purushottam Thakur, non-applicant No. 1 Smt. Warsha the wife of Narendra were present in the Court with the children. At 2. 15 p. m. the parties alongwith their counsel were called in Chamber and I tried to bring home the amicable settlement between the parties not only in respect of the custody of the children but considering the young age of Smt. Warsha and her husband Narendra Thakur to patch up their dispute and to lead married life. During the discussion it appeared that Smt. Warsha had developed apprehension from her husband Narendra and, therefore, she felt that in case she join the society of her husband, there is no guarantee about her life and honour. She has brought to my notice that Narendra has filed a divorce petition and, therefore, he is not interested to lead married life with her. As there was no settlement I was constrained to hear both the counsel and perusing record to decide the case on merit.