Mohammed Buhari vs Ramammadunnia alias Ramadunnissa

Ramalingam, J.—This criminal revision against the order dated 24.6.1985 passed by the learned Sub Divisional Judicial Magistrate of Pattukottai in Crl. M.P. No. 1692 of 1985, filed by the Respondent herein viz. Rahammadunnisa, u/s 97, Code of Criminal Procedure seeking restoration of her two female children from the custody of her husband, Mohammed Buhari, the Petitioner herein, has been filed under the following circumstances:

The Respondent herein, Rahammadunnisa, married the Petitioner herein, Mohammed Buhari, in the year 1967 and they had three children viz. Haja Nazrudeen, Hyerunissa and Janathunissa. According to the Respondent herein, after the birth of the children, she was beaten by the Petitioner herein and was driven out of the house, as a result of which she was living with her children in her sister''s house. Her further case is that on 5.4.1985 at 5 p.m. the Petitioner herein came to the place, where the Respondent herein lived and forcibly took away Hyerunnissa and Janathunissa, aged 5 and 7 years respectively, and thev are being kept along with a girl by name Habibunissa, with whom the Petitioner herein is leading a questionable life. As the lady Habibunissa is of a questionable character it will not be conducive to allow the children to stay with her As such the Respondent herein sought the help of the trial Court to issue a search warrant so as to take away the children from the custody of Habibunissa and deliver them to the Respondent herein. The Petitioner herein opposed the petition on the ground that since 1977 he was away from India and was sending sufficient funds for the Respondent herein and their children, but the Respondent herein deserted his children and is leading an immoral life with one Nazrudeen. As soon as the Petitioner came to know of the same, he came to India and searched for his wife and children on 19.2.1982. Since his wife, the Respondent herein, was not available, he divorced her on 24.2.1982 as per the provisions of the Mohammadan law, and retained custody of the children, and did not take them away forcibly Since then, the Petitioner is taking care of the children and they are attending the school. The Petitioner herein is entitled to the custody of the children and no offence is made out u/s 97, Code of Criminal Procedure.

The Respondent herein did not give evidence in support of her petition. Two witnesses were examined on behalf of the Petitioner herein. The Trial Court, on a consideration of the petition and (Sic)oral evidence, came to the conclusion that the Petitioner herein has not proved that his wife left his custody and is leading an immoral life with Nazrudeen, and as such directed the production of the children to the Respondent herein, as the trial court felt that it will not be conducive for the children to live with the alleged second wife of the Petitioner herein. It is against that order, the aggrieved husband, the Petitioner herein, has preferred this revision.

Learned Counsel for the Respondent herein, conceded that Section 97 Code of Criminal Procedure will not apply to the facts of this case, but, however, urged that this Court should not stand on technicalities and prayed for issue of suitable directions with reference to the custody of the minor children, taking into consideration their paramount welfare. His further case is that the Petitioner herein is not living in India and has left the custody of the Children with the lady with whom he is leading a questionable life. It will not be conducive for the children according to the learned Counsel to be brought up in such an atmosphere and the Court should pass suitable orders for retention of the children in custody of the Respondent herein.

I find that even though there is substance in the contention of the learned Counsel, such a relief cannot be given in a petition filed u/s 97 Code of Criminal Procedure, since the father is the lawful guardian and the mother, has only the right to custody of the minor children till a particular age. No orders could be passed u/s 97 Code of Criminal Procedure because the confinement of the children by the father may not amount to any offence to enable the trial Court to issue a search warrant and order production of the children to the custody of the Respondent herein. If the paramount interests of the minor children is to be decided in criminal courts, the general law as to the guardianship will become otiose. As such, I find the trial Court has committed an error in passing the order. Further, the trial court also failed to note that the Petitioner before it, viz., the Respondent herein, has not sworn to the affidavit and has not even examined herself in support of her petition. The findings of the trial Court are based on no evidence. I hold that the Petitioner herein cannot be said to have committed any offence in taking away the children from the custody of the Respondent herein. Criminal Court cannot exercise its jurisdiction u/s 97, Code of Criminal Procedure in such a situation. In the circumstances, the order of the trial Court directing delivery of the children to the custody of the Respondent herein, is liable to be set aside and is accordingly set aside, and the revision is allowed.