Custody with Father Not Illegal Confinement: High Court of Jammu & Kashmir Sets Aside Magistrate's Order for Minor Child's Production

In a significant ruling, the High Court of Jammu & Kashmir and Ladakh at Srinagar, led by Hon'ble Mr. Justice Sanjay Dhar, has overturned a Judicial Magistrate 1st Class's order for a search-cum-production warrant of a minor child under Section 97 of the Criminal Procedure Code (Cr.P.C.) in a matrimonial dispute case (CRIMINAL MISCELLANEOUS (M) No. 240 of 2022).

The Court examined the challenge to the order issued by the lower court, focusing on the legal framework provided by Section 97 of Cr.P.C. This provision allows a Magistrate to issue search warrants in cases where a person's confinement amounts to an offense. The Court emphasized that for such a warrant to be issued, the confinement must constitute an offense.

The petitioner, Showkat Ahmad Mir, represented by Mr. Naveed Gul, Advocate, contested the search warrant issued for his minor son, who was in his custody. The respondent, Nighat Begum, represented by Mr. Rizwan-ul-Zaman, Advocate, alleged neglect and sought the child’s welfare under her care. The case revolved around the interpretation of 'wrongful confinement' in the context of custody of a minor child.

Justice Dhar, in his assessment, referred to the precedent "Shameem Ahmad vs. Ashiya Begum, 2016 (3) JKJ 128" and "Ramesh vs. Laxmi Bai, (1998) 9 SCC 266," stressing that the custody of a minor child with their father, in the absence of evidence of illegal confinement amounting to an offense, does not justify the issuance of a search warrant under Section 97 Cr.P.C. The Court underscored the paramount importance of the child’s welfare in custody matters but clarified that such issues are to be addressed under the Guardians and Wards Act for permanent custody determination.

The High Court held that the lower court's order was unsustainable in law, as the custody of the child by the father did not constitute illegal confinement amounting to an offense. The Court set aside the order for the child’s production, allowing the petition and emphasized that parties could approach the competent court under the Guardians and Wards Act for matters concerning permanent custody.

Date of Decision: February 12, 2024

Showkat Ahmad Mir vs. Nighat Begum