Kaushalya Bai vs State of M.P.

Sushil Kumar Gupta, J.—With the consent of learned counsel for the parties, this petition is heard finally.

This petition has been filed by the petitioner under section 482 of Cr.P.C. for issuing direction to decide the application under section 98 of the Cr.P.C., which is pending before the Additional Sessions Judge, Ganjbasoda, District Vidisha in Special S.T. No. 65/2014 for seeking custody of Ku. Priyanka, who is daughter of the petitioner.

Brief facts of the case are that one Jitendra Kalawat, on a false pretext, took away minor girl of the petitioner for doing illegal act with malafide intentions, for which an FIR was lodged at Crime No.189/2013. After recovery of the girl, police has registered a case against Jitendra Kalawat under sections 363, 366 and 376 of IPC and under the Protection of Children from Sexual Offence Act. The said Jitendra Kalawat has filed a writ petition (Habeas Corpus) before this Court which was registered as W.P.No.2247/2014 praying therein that he was married with Priyanka in Arya Samaj Mandir and being husband of Priyanka he is entitled for the custody of Priyanka. The Writ Court after perusing the entire case and after looking to the age of the daughter of the petitioner dismissed the petition of Jitendra Kalawat and directed to keep Ku. Priyanka in Naari Samprekshan Grah, Vidisha. After some time father of the girl filed an application under section 98 of the Cr.P.C. for seeking custody of the Ku. Priyanka. Further again one application under section 98 of the Cr.P.C. was filed by the petitioner for seeking interim custody of the Ku. Priyanka. On the application of the petitioner, notices were issued to the Bal Samprekshan Grah for production of the Ku. Priyanka. In compliance of the notice Ku. Priyanka was produced before the Sessions Judge and the statement of Ku. Priyanka and petitioner were recorded on dated 30.8.2014. Even after recording the statement of Ku.Priyanka and the petitioner, the application of the petitioner under section 98 of Cr.P.C. for interim custody of Ku. Priyanka was not decided and it was further kept for indefinite period for production of some proof on the objection of the objector Jitendra Kalawat, thereafter so many dates were fixed, but the application was kept pending and ultimately when it was listed on 17.10.2014, the learned Court fixed the date for recording the evidence on 5th and 6th January, 2015.

Learned counsel for the petitioner submitted that the approach of the learned Court below for not deciding the application for interim custody of the Ku. Priyanka is not proper, even when the petitioner has specifically mentioned in the application that she being mother and natural guardian of her daughter Ku. Priyanka and she will take care of her. It was further submitted that petitioner being the mother of Ku. Priyanka is not only the natural guardian, but as her daughter Ku. Priyanka is minor, therefore, she is having every right to take Ku. Priyanka in her custody. It was also submitted that the petitioner has specifically pleaded that her daughter was being taken away by Jitendra Kalawat with ulterior motive and because the girl was minor and she is not in a position to take the decision of good or bad, therefore, the custody of Ku. Priyanka be given to the petitioner. It has been further argued by the learned counsel for the petitioner that the application under section 98 of Cr.P.C. filed by the petitioner is kept pending which is against the dictum of law. It has also been submitted that under section 6 of Guardian and Wards Act the right of natural guardian of minor is the paramount consideration of guardian in custody of minor and where the mother is willing to take care of the Ku. Priyanka as well as Ku. Priyanka is also willing to go with her mother, it was the duty of the Court to hand over Ku. Priyanka to her mother and the learned Trial Court ought to have decided the custody of Ku. Priyanka immediately leaving apart all the objections made by Jitendra Kalawat. It has also been submitted that the daughter of the petitioner is virtually in custody of Bal Samprekshan Grah and cannot be said that she is free to go anywhere she even has not been allowed to meet her father and mother. It has also been submitted that if Ku. Priyanka will kept in Bal Samprekshan Grah for a long time then her life will spoil by allowing her to remain in Bal Samprekshan Grah because atmosphere in such place is not so good

Learned Panel Lawyer for the respondent-State does not controverted the facts as narrated in the petition and opposed orally.

Having heard the learned counsel for the petitioner and after going through the record and perusal of the documents which are submitted by the petitioner vide Annexure P/1 to P/6, it appears that on dated 17.12.2013 FIR has been lodged against Jitendra Kalawat under section 363 and 366 of IPC for taking away Ku. Priyanka without her will on the pretext to marry her. On perusal of document Annexure P/3, it appears that the application under section 98 of Cr.P.C. has been filed by the petitioner on dated 3.7.2014 for taking the custody of Ku. Priyanka along with her affidavit. On the application of the petitioner Ku. Priyanka was called from the Nari Samprekshan Grah and was produced before the Additional Sessions Judge. The learned Additional Sessions Judge has recorded the statement of Ku. Priyanka and Kaushalya Bai mother of Ku. Priyanka, however, after recording the statements, the learned Additional Sessions Judge by passing the order dated 30.8.2014 adjourned the case after giving the opportunity to produce the defence to accused and Ku. Priyanka sent back to the Nari Samprekshan Grah. On 1.10.2014 learned Additional Sessions Judge directed to decide the application under section 98 of Cr.P.C. after recording the evidence and the case is fixed for recording the evidence on 5th and 6th January, 2015.

Although the statement of Ku. Priyanka has already been recorded and what has been stated by her in statement, without expressing any view, at this stage, where the application under section 98 of Cr.P.C of the petitioner was pending, it was not proper to adjourn the same for a long time. In such type of sensitive matter where the custody of a minor child is involved, it is not proper and justified on the part of the learned Judge to keep pending the same till the evidence is recorded and over.

Therefore, it would be proper to issue a direction to learned Additional Sessions Judge to decide the application under section 98 of Cr.P.C. for seeking custody of Ku. Priyanka. Accordingly, this petition is hereby allowed with a direction to the learned Additional Sessions Judge, Ganjbasoda, District Vidisha to decide the application of the petitioner under section 98 of Cr.P.C. pending in Special S.T.No.65/2014 for seeking custody of the Ku. Priyanka within a period of fifteen days from the date of receipt of certified copy of the order.

With the aforesaid direction, this petition is disposed of.