Minor Staying With Father Cannot Be Termed Illegal Confinement, Not Proper To Assume Only Mother Is Important For Child: J&K High Court

A bench of Justice Moksha Khajuria Kazmi emphasized that a child's custody with the father cannot be considered wrongful confinement.

“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 bench underlined while adding “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 petitioner, Fayaz Ahmad Mir, married respondent Nighat Nasreen in 2015, and they had a son together. The son, due to the mother's serious medical condition, had been under the care and protection of the father. Fayaz claimed to have taken all possible care of Nighat during her ailment, bearing substantial treatment expenses.

In February 2024, Nighat filed an application under Section 97 CrPC before the Judicial Magistrate of Chadoora, alleging that Fayaz had wrongfully confined their son. The Magistrate issued a search warrant, and the minor was handed over to the mother, which led Fayaz to seek quashing of this order from the High Court.

Fayaz's counsel, Mr. Shafaqat Nazir, argued that invoking Section 97 CrPC in this context was an abuse of court process. He contended that the custody of the child with the father could not be considered wrongful confinement.

Nighat's counsel, Mr. Jahangir Iqbal Ganai, claimed that Fayaz forcibly snatched the child while they were on their way to meet relatives. They argued that the Magistrate's order was justified to protect the welfare of the child.

The respondent's counsel relied on judgments from the Bombay High Court and the J&K High Court, emphasizing the welfare of the minor as the paramount consideration in custody matters.

Highlighted the alarming trend of using children as pawns in divorce battles, 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.

Pointing to the evolving role of fathers in child-rearing, recognizing that both parents share equal responsibility in the upbringing of their children the bench opined,

“Gone are the days when it was only the responsibility of mother to nurture and take care of the minor children and the father used to be only responsible for financial support to the family. Nowadays, generally both the parents are working, they devote almost same time, provide financial support, care, & love to their children and share equal responsibility towards welfare of their children”, the bench remarked.

Observing that the Magistrate had exceeded his jurisdiction in treating the father's custody as wrongful confinement, the bench 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.

The High Court also found significant irregularities in the Magistrate's handling of the case. Notably, the Magistrate's order issued at his official residence at 7:30 PM was missing from the digitized record submitted to the High Court. The court expressed shock and concern over this discrepancy and directed the Registrar Vigilance to conduct an inquiry into the matter.

Case Title: Fayaz Ahmad Mir Vs Nighat Nasreen

Citation: 2024 LiveLaw (JKL) 212

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