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Synopsis

The Jammu and Kashmir and Ladakh High Court has declared that the custody of a minor child with his father cannot be considered as illegal confinement emphasising that it is incorrect to assert that only the mother’s role is crucial for a minor child. “The fact is that the love, care, affection and support of father in child’s life is of equal importance in boosting the development of the child.”

The court, presided over by Justice Moksha Khajuria Kazmi, condemned a magistrate’s order that transferred custody of a minor child to the mother, characterising the father's custody as illegal confinement. “The father has been held as the natural guardian of the minor child, as such, in no circumstances, minor staying with father can be termed as illegal confinement amounting to an offence,” the court stated.

The case involved Fayaz Ahmad Mir, the petitioner, and Nighat Nasreen, the respondent, were married in 2015 and have a young son. Due to Nighat's severe medical condition, the child was under Fayaz’s care. Fayaz had not only provided for Nighat’s medical expenses but also assumed full responsibility for their son. On February 23, 2024, Nighat filed an application under Section 97 of the Code of Criminal Procedure (CrPC), alleging that Fayaz was wrongfully confining their son. The Judicial Magistrate of Chadoora issued a search warrant, leading to the child’s transfer to Nighat’s custody. Fayaz then sought to quash this order from the High Court, arguing that the proceedings under Section 97 CrPC were an abuse of the court process.

The petitioner argued that the lower court’s proceedings were misused, asserting that the father’s custody of the child could not be legally considered wrongful confinement. Citing previous case law, including a recent judgment in Showkat Ahmad Mir vs. Nighat Begum, it was contended that custody disputes involving parents cannot be resolved under Section 97 CrPC, as it is intended for cases involving actual confinement.

Conversely, the respondents argued that Fayaz’s actions amounted to wrongful  confinement, asserting that the lower court’s decision was justified to protect the child. It was further contended that the welfare of the child should be the primary consideration in custody matters and that the custody of a minor child below the age of 5 years should be with the mother.

The court highlighted that the welfare of the child is of paramount importance in custody disputes. It stated that “In marital discord, children are the most vulnerable parties; the anguish they experience during and after judicial resolution of such dispute is immeasurable. Children are the ones who suffer the most as a result of family breakdowns. The well being of the child should always be the paramount consideration and not the right and wrongs done by the parents.”

The court emphasised that modern parenting involves shared responsibilities, with both parents contributing to the child’s upbringing, while rejecting the notion that the mother’s role is inherently more significant than the father’s in such cases.

The court scrutinized the lower court’s application of Section 97 CrPC. It observed that the Magistrate’s order failed to establish that Fayaz’s custody constituted an offence as per the provisions of Section 97 CrPC, which requires both actual confinement and that such confinement amounts to an offence.

Consequently, the court quashed the order of a lower court that had erroneously directed the father to hand over the child to the mother. Additionally, the court ordered an inquiry into the procedural anomalies surrounding the Magistrate’s order.

 

Cause Title: Fayaz Ahmad Mir v Nighat Nasreen [CRM(M) No. 152/2024]