Order
1. Heard learned counsel for both the parties and perused the material produced before us. This writ petition is filed by Mrs Anjali Anil Rangari, the mother of two minor children, namely, Miss Yutika Rangari (daughter) and Master Shankar Rangari (son) aged 9 and 5 years respectively. This petition arises out of an order dated 10-3-1997 passed by the Chief Judicial Magistrate, Nagpur on an application dated 10-3-1997 moved by Anil Kripasagar Rangari, the respondent and father of the minor children, under Section 97 of the Criminal Procedure Code. On the very same day the learned Chief Judicial Magistrate issued a warrant to produce the children before the Court in order to decide “about their future custody”. It was averred in the application by the father that the mother, the petitioner herein left the matrimonial home on 4-3-1997 along with two children for Delhi where her parents reside, without informing him as well as his parents. The children were in illegal custody and were in wrongful confinement of the mother. Since their exams were approaching some time in the last week of March 1997, the father, the respondent prayed that warrant be issued urgently to produce the children before the Court. Accordingly, the learned Chief Judicial Magistrate issued the warrant returnable on 20-3-1997. The Nagpur Police came to Delhi and after fetching the children from the custody of the mother, produced them before the Chief Judicial Magistrate on 17-3-1997. On 17-3-1997 itself the Magistrate passed the impugned order directing that the custody of the minor children be given to the father, the respondent.
2. Many rival contentions were raised before us. It is the admitted position that the respondent father has filed an application under Section 25 of the Guardian and Wards Act, 1890 before the Family Court, Nagpur for appropriate reliefs in respect of the two minor children against the petitioner, the mother, and the same is pending.
3. The only question that needs to be considered in the context of the facts and circumstances of the present case is as to whether provisions of Section 97 CrPC could be invoked. It cannot be disputed that the mother is also a natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956. If it is so, could it be said that the custody of the two minor children with the mother was illegal and they were under her wrongful confinement? In the facts and circumstances of the case, we are unable to hold that the custody of the children with the mother was either unlawful or they were wrongfully confined by the mother at Delhi. If this be so the very basis of the impugned order cannot be sustained and consequently the impugned order is required to be set aside. We accordingly do so.
4. The respondent father who is present in the Court along with two minor children is directed to hand over the custody of both the children to the petitioner mother.
5. It is expressly made clear that since the application before the Family Court for appropriate reliefs filed by the respondent is pending, we have refrained ourselves from dealing with the rival contentions raised by the parties in their pleadings before us. All the contentions are kept open. The learned Judge of the Family Court/appropriate court upon consideration of the pleadings of the parties and other evidence if produced on record will pass appropriate order in accordance with law. It is also expressly made clear that this order be not construed to mean that the custody of both the children with the petitioner mother is finally decided by this Court. This order is confined to the proceedings that were initiated under Section 97 CrPC.
6. It also needs to be recorded that during the course of hearing of this writ petition, the respondent father was required to remain present along with the two children in the Court on various dates.
7. If an application is moved by either of the parties before the Family Court/appropriate court for early disposal of the application filed under Section 25 of the Guardianship and Wards Act, 1890, the Court will consider the same sympathetically.
8. In the result, the Writ Petition (Crl.) No. 69 of 1997 is allowed. The impugned order dated 20-3-1997 is quashed and set aside. We also quash the proceedings initiated by the respondent being Misc. Criminal Application No. 14 of 1997 in the Court of Chief Judicial Magistrate, Nagpur. No order as to costs.