Heard Mr.R.J.Goswami, learned advocate for the petitioner, Mrs.M.L.Shah, learned Additional Public Prosecutor for respondent No.1 ? State of Gujarat and Mr.Harnish Darji, learned advocate for respondent No.2.
The learned advocate for the petitioner has submitted that the custody of the child with the father can in no manner be said to be unlawful custody so as to attract the provisions of Section 97 of the Code of Criminal Procedure, 1973 (the Code). It is submitted that, in the circumstances, both the Courts below have erred in entertaining the application made by respondent No.2 herein and in directing that the custody of the minor child be handed over to the respondent No.2.
On the other hand, Mr.Harnish Darji, learned advocate for respondent No.2 has vehemently opposed the petition. It is submitted that the respondent No.2 was residing with the petitioner, however, the petitioner had thrown out the respondent No.2 from his house and forcibly retained the custody of the minor child with him, which amounts to unlawful confinement of the child. It is submitted that, in the circumstances, both the Courts below were justified in entertaining the application. It is further submitted that the mother is the natural guardian of the child and when the child is aged two years, the welfare of the child is paramount and hence, no infirmity can be found in the orders passed by the Courts below in directing that custody of the minor child be handed over to the respondent No.2.
Having considered the submissions advanced by the learned advocates for the parties and upon perusal of the impugned orders passed by the Courts below, prima facie, neither of the Courts below have recorded any finding to the effect that there is unlawful confinement of the child so as to attract the provisions of Section 97 of the Code.
In the circumstances, issue Rule returnable on 21st July, 2008. Interim relief granted earlier to continue till the final disposal of the petition.
Mrs.M.L.Shah, learned Additional Public Prosecutor waives service of notice of rule on behalf of respondent No.1 ? State of Gujarat. Mr.Harnish Darji, learned advocate waives service of notice of rule on behalf of respondent No.2.
[HARSHA DEVANI, J.] parmar* Top