By Astha Bhumish Shah

Underscoring the paramount importance of both parents in a child’s life, the Jammu and Kashmir and Ladakh High Court severely reprimanded a magistrate for illegally ordering the custody of a minor child to the mother under Section 97 of the CrPC. In the present case, the petitioner and respondent had married each other in 2015 and had a son together. The son, due to the mother’s serious medical condition, had been under the care and protection of the father. However, in 2024, the respondent filed an application under Section 97 CrPC before the Judicial Magistrate of Chadoora alleging that the petitioner had wrongfully confined their son. Post which,  the Magistrate issued a search warrant, and the minor was handed over to the mother, which led the petitioner to seek quashing of this order from the High Court. The petitioner contended that invoking Section 97 of the CrPC would be an abuse of the Court process. However, the respondent alleged that the petitioner had forcibly snatched the child while they were on their way to meet relatives hence the Magistrates order was justified in order to protect the welfare of the child. 

Highlighting the alarming trend of using children as pawns in divorce battles and emphasizing the detrimental impact on the child’s well-being, the Court stressed that the paramount consideration in such cases should be the child’s welfare, not the parents’ personal disputes. Recognising the evolving role of fathers in child-rearing, recognizing that both parents share equal responsibility in the upbringing of their children, the Court further observed that it is no longer solely the mother’s responsibility to nurture and care for minor children, nor is the father only responsible for providing financial support. In today’s society, with both parents often working, they tend to equally share the time, financial support, care, and love for their children, taking on equal responsibility for their children’s welfare. Observing that the Magistrate had exceeded his jurisdiction in treating the father’s custody as wrongful confinement, the Court allowed the petition and the impugned order and further proceedings initiated by Court of Sub Judge/ Judicial Magistrate Chadoora, were quashed. While the High Court allowed the mother to retain custody for the time being, it directed the parties to approach the appropriate Court under the Guardians and Wards Act for a permanent custody decision. (Fayaz Ahmad Mir Vs Nighat Nasreen – CRM(M) No. 152/2024) 

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