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Judgment
A.V. Potdar, J.—Rule made returnable forthwith. By consent of the parties heard finally at the stage of admission.
This petition is directed against the judgment and order dated 16.11.2010 passed by Additional Sessions Judge, Aurangabad in Criminal Revision Application No. 200/2010.
Few facts, which are not disputed and are matter of record, may briefly be stated thus-
Respondent No. 2 is the wife of Petitioner No. 1. Respondent No. 2 had filed Criminal Miscellaneous Application No. 133/2010 before JMFC, Gangapur u/s 97 of the Criminal Procedure Code. On 22.04.2010, learned JMFC had directed the Petitioners to produce minor Vishal, son of Petitioner No. 1 and Respondent No. 2, before the Court on 30.04.2011. On 30.04.2011, when the Petitioners produced the minor before the JMFC, Gangapur, learned JMFC handed over custody of the child to Respondent No. 2. Accordingly, the Petitioners obeyed the order. However, being aggrieved by the said judgment, the Petitioner preferred Criminal Revision Application No. 124/2010 before Sessions Judge, Aurangabad. Vide judgment and order dated 21.06.2010, Sessions Judge allowed the Criminal Revision No. 124/2010 and directed Respondent No. 2 to hand over the custody of the minor to the Petitioners. It appears that Respondent No. 2 did not obey this order. It further appears that therefore, the Petitioners preferred Miscellaneous Application No. 209/2010 before JMFC, Gangapur seeking implementation of the order passed by Additional Sessions Judge in Criminal Revision No. 124/2010. It appears that Criminal Miscellaneous Application No. 209/2010 came to be allowed by the JMFC, Gangapur vide order dated 06.07.2010. Again the said order dated 06.07.2010 came to be challenged in Criminal Revision No. 200/2010 before Sessions Judge, Aurangabad. The Criminal Revision No. 200/2010 came to be assigned to the Sessions Judge Aurangabad who had decided Criminal Revision No. 124/2010. However, surprisingly, Additional Sessions Judge, rejected the Criminal Revision Application No. 200/2010 on 16.11.2010 hence the Petitioners are before this Court.
After this petition was filed, considering the peculiar facts and circumstances of the case, this Court had expressed a view as to whether there are any chances of amicable settlement between the parties. However, both the learned counsel inform that inspite of their best possible persuasion, the parties could not arrive at settlement. Eventually, this Court has to hear the petition finally.
This Court in "Nagnath Bansode v. Anita Bansode" 2010 (3) L.J.Soft 16, has observed that application u/s 97 of the Code of Criminal Procedure not to be entertained and allowed in absence of averments that the person, whose custody is sought, is wrongfully confined.
Admittedly, when an application No. 133/2010 was moved by Respondent No. 2 before JMFC, Gangapur seeking custody of minor, at that time the minor was not wrongfully confined by the Petitioners and hence the Criminal Revision No. 124/2010 preferred by the Petitioners was rightly allowed by the Additional Sessions Judge. Admittedly, this order passed in Criminal Revision No. 124/2010 was not obeyed by Respondent No. 2. Rightly, the Petitioners, seeking implementation of the order passed by the superior Court, have approached the JMFC by filing Criminal Application No. 209/2010, which came to be allowed by the JMFC on the basis of the order passed by Additional Sessions Judge in Criminal Revision No. 124/2010. Admittedly, the said order is not passed by JMFC in its original criminal jurisdiction but it was passed in the jurisdiction as executing Court. Additional Sessions Judge now is of the view that the child was not wrongfully confined and the application is allowed by the JMFC against the provisions of law. However, learned Revisional Court lost sight of the fact that Respondent No. 2 has not obeyed the order passed by him and the JMFC has passed the order only to the limited extent of implementation and execution of the orders passed by the Additional Sessions Judge. If the order is passed by the competent court directed Respondent No. 2 to hand over the custody of the minor to the Petitioners and without obeying the said orders if the custody is retained by Respondent No. 2, then certainly the child is wrongfully confined by Respondent No. 2. Additionally, in view of the observations in Nagnath Bansode''s Case, referred supra, the remedy to take custody of a minor is under the Guardians and Wards Act. In the premise, the order passed by the JMFC, requires to be maintained and the order passed by the Additional Sessions Judge in Criminal Revision No. 200/2010 requires to be quashed and set aside.
Consequently, the order impugned, passed by Additional Sessions Judge, Aurangabad in Criminal Revision No. 200/2010 is hereby quashed and set aside. Respondent No. 2 is directed to hand over the custody of minor Vishal to the Petitioners within a period of two weeks from today. Rule is made absolute as indicated above.