Allegations On Mother’s Character Don't Make Custody Wrongful Confinement: MP High Court

The Madhya Pradesh High Court has reiterated that a child living with his mother or father cannot be said to be in “wrongful confinement”, and that a magistrate cannot use Section 97 of the Code of Criminal Procedure (CrPC) to take a child away from a parent.

Justice Pramod Kumar Agrawal of the Jabalpur bench made the observation while dismissing a grandmother’s petition seeking her minor grandson’s removal from his mother’s custody through a search warrant.

The petition under Section 482 CrPC challenged the 11 July 2017 order of the Sub Divisional Magistrate (SDM), Ashta, District Sehore, dismissing her Section 97 application as not maintainable, and the 8 December 2017 order of the I Additional Sessions Judge, Ashta, upholding it in Criminal Revision No. 73/2017.

The grandmother told the court that her son had married the first respondent and that a boy was born to them on 28 January 2011. She claimed the mother was living with another man and had kept the child with her, and alleged that the two had assaulted the boy and that his father was refused permission to meet him. She then lodged a police report and approached the SDM seeking a search warrant and the child’s release.

Opposing the plea, counsel for the respondents argued that the mother is the natural and legal guardian, so no search warrant can be issued to recover a child from her, and that “by no stretch of imagination” could the boy be called wrongfully confined.

The High Court agreed, finding that the first respondent is the child’s real mother and that nothing on record suggested wrongful confinement. Noting that whether an SDM can issue a search warrant to recover a child from a parent had been “raised time and again”, the court called the position settled. In its words, “it is now trite that a child, who is in the legal custody of mother or father cannot be said to be in wrongful confinement.”

It relied on two coordinate bench rulings, Jaya Chakravarti v. State of M.P. (2021) and Lalit Joshi v. Sub Divisional Magistrate, Khargone (2023), both drawing on the Supreme Court’s decision in Ramesh v. Laxmibai, (1998) 9 SCC 266.

Reproducing the reasoning in Jaya Chakravarti, the order noted that Section 97 CrPC lets a magistrate issue a search warrant only if a person is confined in circumstances amounting to an offence. Section 98, which deals with the restoration of liberty of a woman or a female child under 18, did not apply to a male child. A child living with his natural guardian mother, the earlier ruling held, cannot be termed “confinement”.

It also cited Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019), where the Supreme Court said the ordinary remedy in custody matters lies under the Hindu Minority and Guardianship Act or the Guardians and Wards Act.

Justice Agrawal noted that the child was admittedly living with his mother. Nothing on record showed that any competent court had declared her incompetent, disentitled her to custody, or directed that the child should not remain with her.

The judge also addressed the grandmother’s allegations about the mother’s conduct. “The mere allegation that the conduct or character of the mother is not proper, by itself, cannot lead to the conclusion that the minor child is in wrongful confinement within the meaning of Section 97 of the Cr.P.C.,” the court held.

Finding that the SDM “committed no error” in declining to invoke Section 97, and that the Additional Sessions Judge had rightly affirmed it, the court saw no case for interference and dismissed the petition.

Ms. Ranno Rajak appeared for the petitioner; Shri Wakeel Khan represented the respondents.

The ruling is a timely reminder that provisions meant to free people from illegal confinement are not a shortcut in family disputes. Where relatives contest who should raise a child, the route lies through civil courts weighing the child’s welfare.

Case Title: Smt. Maya Rajput vs. Smt. Mona (Kavita) and Others

Order Date: September 17, 2026

Bench: Justice Pramod Kumar Agrawal