1. RULE. Ms.Chetna Shah, leanred Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent No.1 and Mr.Harshad Patel, learned advocate waives the service of notice of rule on behalf of the respondent nos.2 and 3. 2.00. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, present Revision Application is taken up for final hearing today.
3.00. Present Revision Application has been preferred by the petitioner - mother to quash and set aside the impugned Order passed by the learned Chief Judicial Magistrate, Kutch- Bhuj in Criminal Misc.Application No. 410 of 2012 dtd.1/8/2012, by which the application submitted by the petitioner herein to issue Search Warrant under section 97 of the Code of Criminal Procedure to produce the minor child aged about 6 years and to get custody of the minor child, has been rejected.
4.00. Heard Mr.Y.J. Patel, learned advocate appearing on behalf of the petitioner, Mr.Harshad Patel, Ms.Chetna Shah, learned Additional Public Prosecutor appearing on behalf of the respondent no.1 and learned advocate appearing on behalf of the respondent nos.2 and 3.
5.00. At the outset, it is required to be noted and it is not in dispute that the minor child, whose custody is sought for by the petitioner herein - mother, is aged about 6 years only. It is also not in dispute that the respondent No.2 herein – husband has already remarried. Under the circumstances and in the interest of justice, the ends of justice would be met if the custody of the minor child, who is aged about 6 years, is to be given to the petitioner - mother. Under the circumstances and in the peculiar facts and circumstances and without citing the same as precedent and to consider the interest of the minor child only, present Revision Application is allowed and the impugned order passed by the learned Chief Judicial Magistrate, Kutch-Bhuj in Criminal Misc.Application No. 410 of 2012 dtd.1/8/2012, is hereby quashed and set aside and the respondent nos.2 and 3 herein are herein directed to handover the custody of the minor child named Rahul to the petitioner herein – mother, at the earliest. If the custody of the minor child – Rahul is not handed over to the petitioner herein by the respondent nos.2 and 3 herein, within a period of one week from the date of service of the present order, it will be open for the petitioner herein to get assistance from the Police to secure the custody of the minor Rahul. However,the grand- father and grand-mother of the minor child Rahul shall have a visiting right to meet the minor child Rahul and as and when such a request is made, the petitioner herein – shall permit them to meet minor child Rahul. However, parties are directed to see that no untoward incident happens and the same would be in the interest of Rahul only. Rule is made absolute accordingly.
Direct Service is permitted.
[M.R. SHAH, J.] rafik