Srinagar: The High Court of J&K and Ladakh has directed a vigilance enquiry against the Judicial Magistrate, 1st Class, (Sub Judge), Chadoora, for handing over the custody of a minor to his mother allegedly without passing orders.
Justice Moksha Kazmi Khajuria directed the Registrar Vigilance, High Court of J&K and Ladakh, Srinagar, “to enquire into the matter and submit a report within a period of four weeks from today to the Chief Justice for appropriate orders”.
The order ensued in a case of matrimonial discord titled Fayaz Ahmad Mir versus Nighat Nasreen over the custody of their male child.
Justice Khajuria after perusing the records from the court of the magistrate and hearing the respective counsels observed “this court cannot lose sight of the fact that the order did not form part of the record, which was sent to this court before the counsel for the parties made their respective submissions, which included the one about the custody of the child having been given to the respondent-mother by the learned Magistrate without passing any order to that effect”.
Justice Khajuria held “in order to protect the sanctity of the court orders, it would be quite expedient that the matter is enquired into so that not only the veracity of the order is ascertained but the apprehensions of whatever kind are also set at rest”.
Proceedings under Section 97 CrPC (illegal confinement) were initiated against the petitioner father and the custody of the minor ward of the contesting parties taken from him and handed over to the respondent mother.
The petitioner said that out of vengeance and ill advice, a false and frivolous application under Section 97 of CrPC was filed against him before the court of learned Sub Judge/Judicial Magistrate 1st Class, Chadoora. The SHO Police Station, Chadoora, had been ordered to recover the minor son of the parties from the alleged wrongful confinement of the petitioner father.
The petitioner further stated that the magistrate directed for production of the minor child and afterwards handed over his custody to the respondent mother in terms of “an order of February 2, 2024”.
The petitioner assailed the order on the ground that the proceedings initiated under Section 97 CrPC amounted to abuse of the process of courts.
He cited a superior court judgment that said that the father is the natural guardian of the minor child, therefore, the custody of the minor child with the father can never be considered as wrongful confinement.
In the instant case the welfare of the child is at peril. Custody battles are contested between former/existing spouses over their children. However, in all such situations, the court’s primary concern is and should be the welfare of the children, not the demands and arguments of once loving, but now estranged parents as they are frequently used as pawns in such situations, and their parents utilize them for their own gain, striking deals without taking into account the emotional, social, and mental issues that the children may be experiencing.
The bench of Justice Khajuria perused the digitized record of Sub Judge/Judicial Magistrate Chadoora, and shockingly found “though the proceedings had to be initiated at 4 PM on 24.02.2024, but the digitized record sent by the Magistrate with proper index and pagination did not contain any order passed after 4 PM on 24.02.2024”.
The bench found that the case was again listed on 26.02.2024 when both parents were present. The proceedings on this date record that the minor child had refused to go to the petitioner.
The bench found “neither the proceedings were initiated at 4 Pm on 24.02.2024 nor any formal order was passed for handing over the minor son to the respondent”.
The petitioner vehemently argued that the learned Sub Judge/Judicial Magistrate, Chadoora, “has exceeded his jurisdiction thereby accommodating the respondent without passing any formal order”.
Justice Khajuria allowed the petition of the father and directed “the impugned order dated 24.02.2024 and further proceedings initiated by learned Court of Sub Judge/Judicial Magistrate Chadoora, are quashed”.
The judge observed that since the custody of the child is with the respondent mother, therefore, it will not be proper to disturb the custody of the child at this point of time.
“As far as the question with respect to the permanent custody of the minor child is concerned, the parties are at liberty to approach the competent court under Guardians and Wards Act for appropriate orders,” it said.
