MP High Court: Child With Mother Not 'Wrongful Confinement' Under CrPC

• The Madhya Pradesh High Court ruled that a child living with their mother is not in "wrongful confinement."
• The court dismissed a grandmother's plea for a Section 97 CrPC search warrant to recover her grandson from his mother.
• Allegations regarding a mother's character are insufficient grounds to invoke Section 97 CrPC for wrongful confinement.
• The ruling emphasized that child custody disputes should be addressed under specific family law statutes, not the CrPC.
• This decision aligns with previous Supreme Court and High Court precedents, affirming that a child with a natural parent is legally in custody.

The mere allegation that the conduct or character of the mother is not proper, by itself, cannot lead to the conclusion that the minor child is in wrongful confinement within the meaning of Section 97 of the Cr.P.C.

The Madhya Pradesh High Court recently affirmed that a child residing with their mother cannot be deemed to be in "wrongful confinement," thereby rejecting a grandmother's petition that sought a search warrant under Section 97 of the Code of Criminal Procedure (CrPC) to retrieve her minor grandson. Justice Pramod Kumar Agrawal, presiding over the Jabalpur bench, underscored that a magistrate lacks the authority to employ Section 97 CrPC for the purpose of removing a child from a parent's care.

The grandmother's legal challenge specifically targeted two prior judicial orders. She contested the Sub Divisional Magistrate (SDM) of Ashta, District Sehore's decision from July 11, 2017, which had dismissed her Section 97 application as non-maintainable. Additionally, she challenged the I Additional Sessions Judge, Ashta's order dated December 8, 2017, which upheld the SDM's ruling in Criminal Revision No. 73/2017. Her petition, filed under Section 482 CrPC, sought to overturn these decisions and secure the child's recovery.

In her submissions, the grandmother alleged that her son had married the first respondent, and a child was born to them on January 28, 2011. She claimed the mother was cohabiting with another individual and had the child with her, further asserting that the boy had been subjected to assault and his father was denied visitation. Following these allegations, she filed a police report and subsequently approached the SDM for a search warrant and the child's release. However, counsel for the respondents argued that the mother, as the natural and legal guardian, could not be subject to a search warrant for her child, contending that the situation by no means constituted wrongful confinement. The High Court concurred with this assessment, finding no evidence on record to suggest the child was wrongfully confined by his biological mother.

The High Court emphasized that the legal position regarding a child in a parent's custody not being wrongfully confined is well-established. The court cited its own coordinate bench rulings, including Jaya Chakravarti v. State of M.P. (2021) and Lalit Joshi v. Sub Divisional Magistrate, Khargone (2023). Both these judgments, in turn, relied upon the Supreme Court's authoritative decision in Ramesh v. Laxmibai, (1998) 9 SCC 266, which consistently holds that a child under the legal care of either parent is not considered to be in wrongful confinement.

The court's reasoning, as detailed in the Jaya Chakravarti case, clarifies that Section 97 CrPC permits a magistrate to issue a search warrant only when an individual is confined under circumstances that amount to a criminal offense. Furthermore, the court noted that Section 98 CrPC, which addresses the restoration of liberty for a woman or a female child under the age of 18, was not applicable in this instance as the child in question was male. Therefore, a child living with his natural guardian mother cannot be characterized as being in 'confinement' in a manner that would trigger these criminal procedure provisions.

Justice Agrawal also referenced the Supreme Court's ruling in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019), which reiterated that the appropriate legal recourse for child custody matters typically falls under specialized family law statutes, such as the Hindu Minority and Guardianship Act or the Guardians and Wards Act. This reinforces the principle that the CrPC is not the intended mechanism for resolving disputes over a child's custody when they are with a natural parent.

A pivotal aspect of the High Court's ruling addressed the grandmother's allegations concerning the mother's conduct. Justice Agrawal specifically observed that the child was admittedly residing with his mother, and no competent court had ever declared her unfit, stripped her of custody rights, or issued any directive preventing the child from remaining in her care. This absence of any judicial determination against the mother's guardianship was crucial to the court's decision.

The court firmly held that "The mere allegation that the conduct or character of the mother is not proper, by itself, cannot lead to the conclusion that the minor child is in wrongful confinement within the meaning of Section 97 of the Cr.P.C." This statement clarifies that accusations regarding a parent's moral character, without a formal legal finding of unsuitability for guardianship, do not transform a child's presence with that parent into a criminal act of wrongful confinement. Consequently, the High Court found no error in the SDM's initial decision to decline the invocation of Section 97 CrPC, nor in the Additional Sessions Judge's subsequent affirmation of that decision, leading to the dismissal of the grandmother's petition.

Lawyers advising on child custody disputes in India should note that allegations regarding a parent's character are insufficient grounds to invoke Section 97 CrPC for wrongful confinement, reinforcing that such matters are best addressed under specific family law statutes like the Hindu Minority and Guardianship Act or the Guardians and Wards Act.

Source: Original reporting via Live Law