Gujarat high court has ruled that in cases of dispute over child's custody between parents, the lower court should not issue search warrant if it is not a case of illegal confinement or forcible abduction of child.
Getting custody of a child from other parent through police intervention by invoking section 97 of the CrPC is a common practice. In this case, a quarreling couple in Junagadh moved court over custody of a two-and a half-year-old child Jeky. The mother sought custody of the son from his father. A lower court issued search warrant under section 97 of the CrPC ordering the police to take custody of the child and hand it over to the mother.
Against this order, the father moved the HC, which quashed the lower court's order. While setting aside the lower court's order, the HC observed, "Father is a statutory guardian of the minor son and when custody of the minor was with the father, nobody can take away the custody of the minor from him except without following the provisions of law which relates to the custody of minor i.e. Hindu Minority and Guardianship Act and Guardian and Wards Act. Thereby, it is specifically contended that there cannot be a search warrant and direction to handover the custody of minor to anybody else from the legal custody of the father, more particularly under section 97 of the Criminal Procedure Code where the court does not have the powers to issue search warrant to take away the custody of minor from his legal guardian."
The HC said that the law makes it clear that the basic requirement to exercise jurisdiction under section 97 of the CrPC is presence of reason to believe that any person is confined under such circumstances that such confinement amounts to an offence. "It is made clear that the primary requirement for issuance of search warrant is confinement of any person and that too, such confinement amounts to an offence," the court order reads.
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