Beauty Rajkhowa vs State of Assam and Another

R.S. Mongia, J.—Heard Mr. P.J. Phukan, learned counsel for the petitioner and Mrs. K. Deka, learned Public Prosecutor, Assam.

With the help of the learned counsel for the petitioner as well as the learned counsel for the respondent No. 1, I have gone through the records of the case.

By this revision petition u/s 397/401/482 of the CrPC, read with Article 227 of the Constitution of India, Mrs. Beauty Rajkhowa, wife of Sri Sushil Rajkhowa (respondent No. 2) challenges the notice issued by the Chief Judicial Magistrate, Guwahati dated 3rd of December, 1994 by which she was directed to produce her minor son Mastger Ayon Rajkhowa on 21st of December, 1994 in his court. It is alleged in this petition that due to inhuman cruelty meted out to the petitioner and her children by respondent No. 2, it became impossible for the petitioner and other family members to live with the respondent No. 2 as one family and for about a year before filing of the present petition, she along with her children were living separately from respondent No. 2. The daughter is more than 18 years of age and they were voluntarily staying away from respondent No. 2.

It is further alleged, that she had sufficient means to look after herself, her daughter as well as the minor child Master Ayon Rajkhowa who was about 4 years old at the time of filing of this petition.

It is further alleged that respondent No. 2 filed a false FIR before Chandmari Police Station that the petitioner, her daughter, her minor son and one maid servant had been kidnapped by some miscreants, on the basis of which a case being Chandmari P.S. Case No. 147/94 u/s 342/497/498 IPC was registered corresponding to G.R. No. 2059/94.

In connection with aforesaid FIR, the petitioner, her daughter, and her maid servant Monomati were produced before the Chief Judicial Magistrate, Guwahati on 4.8.1994 where all the aforesaid persons made statements, that they had not been kidnapped and rather they were voluntarily living separately from respondent No. 2 Sri Sushil Rajkhowa. After recording their statements, the Chie Judicial, Magistrate released the petitioner and her daughter on personal bond. The maid servant was also allowed to go along with the petitioner on 5.8.1994.

After going through the record, it is not understood as to what jurisdiction the Magistrate had, after the aforesaid facts came to the notice, for that production of the minor child in court. Neither the minor child could commit any offence nor it was alleged. If there was any dispute regarding the custody of the child, the criminal court had no jurisdiction in that regard. It was not even alleged that the minor child was forcibly taken away by the mother from the legal custody of the respondent No. 2,, i.e., father. To me it looks to be misuse of the process of the court by asking the petitioner to produce the minor child in court.

It may be observed herewith, that while admitting this petition the operation of the impugned notice dated 3.12.1994 had been stayed.

For the foregoing reasons, I allow this petition and quash the notice dated 3.12.1994.

The records of the case be sent back to the concerned court immediately.