Excerpt
The Calcutta High Court on 17th March disposed of the instant petition by modifying an order passed on 20.10.2020 by the Learned Additional Sessions Judge in Criminal Revision No. 247 of 2020, thereby directing the petitioner not to produce her minor child before the Court on 19.11.2020 at 2 p.m.
Facts
The Petitioner (mother) has an infant baby of about two years. The petitioner filed a petition under Section 97 of the Cr.P.C. before the learned Additional Chief Judicial Magistrate, as the infant child was a suckling baby, which was subsequently transferred to the Learned Judicial Magistrate for further disposal. The Court on 29.09.2020 ordered for the production of the child on the next date.
But the opposite party (husband) challenged the order in revision being Criminal Revision No. 247/2020 before the learned Additional Sessions Judge who passed an interim stay on the operation of the impugned order on 12.10.2020 and the matter was transferred to the Court of the Learned Additional Sessions Judge. On 19.10.2020, Learned Revisional Court sought an explanation from the Learned Magistrate for an order passed on 15.10.2020 to use essential force to comply with the order passed for the child’s produce for a stay has already been granted by the Learned Revisional Court. Further, the Learned Revisional Court found an apparent discrepancy in the court’s records, and thus, the interim stay was extended and the matter was adjourned for the next hearing where the minor child was directed to be produced in Court on at 2 p.m. Therefore, the petitioner preferred the instant revisional application being aggrieved with the order via 20.10.2020 passed by the Learned Sessions Court.
Petitioner’s Arguments
The Petitioner pleaded that the immediate well-being of the two years old child was being sacrificed due to the clash of ego between the learned Sessions Court & the Learned Magistrate concerned. Learned Counsel further relied on Smt. Surinder Kaur Sandhu vs Harbax Singh Sandhu & Anr. [AIR 1985 SC 1224]. It was contended that in the interest of justice and exigent circumstances, the custody of a minor child should be given to the mother whether Section 97 of the Code was invoked or not.
Respondent’s Arguments
Learned Counsel for State submitted that there was no illegality in the impugned order and the Learned Magistrate erred in granting child’s custody to the mother. Further, it was submitted that by placing reliance on the case of Ramesh vs Laxmi Bai (Smt.) [(1998) 9 SCC 266], Section 97 of the Code, was not attracted to the facts and circumstances of the case as the child lived with his father and the question of custody of a minor could only be decided in an application filed under the said Guardians and Wards Act.
While, Learned Counsel for Opposite Party No. 2, pleaded that the opposite party no. 2 was the minor’s father. Further, it was argued that despite the stay order passed by the Learned Revisional Court, the Learned Magistrate directed the minor’s production before the court forcibly which was a complete abuse of the process of Court.
Court’s Observations
The Hon’ble Justice Jay Sengupta set aside the impugned order and directed the learned Sessions Court to decide the revisional application without insisting upon the production of the infant baby in Court. It was also held that during the pendency of the revision the petitioner (mother) should have custody of the child. Furthermore, visitation rights to the father of the child could be granted and he could also initiate a proceeding under the Guardians and Wards Act.
Judgment
The Hon’ble Court disposed of the instant revisional application and the connected application with the directions to transmit the said order immediately to the learned Additional Sessions Judge, 4th Fast Track Court, Barrackpore, North 24 Parganas.
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