Mere Allegations About Mother's Character Can't Justify Search Warrant To Recover Child From Her Custody: MP High Court

The Madhya Pradesh High Court has observed that a mere allegation about a mother's character cannot justify the issuance of a search warrant under Section 97 CrPC to recover a child from her custody. [2026 LiveLaw (MP) 431]

For context, Section 97 CrPC empowers a District Magistrate, Sub-Divisional Magistrate, or Magistrate of First Class to issue a search warrant to rescue a person who is in wrongful confinement. 

The bench of Justice Pramod Kumar Agrawal observed,

"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 petition was filed by the paternal grandmother of the child challenging the order of December 8, 2017 passed by the Additional Sessions Judge that dismissed her application under Section 97 CrPC as not maintainable. 

The counsel for the grandmother argued that the mother was residing with another man and had the custody of their child; the grandmother bears the educational expenses of the child; and when the father came to know that the child was being subjected to cruelty, he went to meet the child, but the mother did not allow him. Consequently, the grandmother filed a report with the concerned police station. 

Thereafter, the grandmother filed an application under Section 97 CrPC before the SDM of the District Sehore, but the same was dismissed. The grandmother subsequently approached the Revisional Court, which also dismissed his application. 

The counsel for the respondent claimed that the mother was the natural and legal guardian of the child and therefore a search warrant cannot be issued for recovery of the child. 

The court relied on Supreme Court cases where similar issues were discussed and noted that the child was residing with his mother, who was the legal and natural guardian of the child. The bench highlighted, 

"the minor child/respondent No.2 is residing with his mother/respondent No.1. There is no material on record to show that the respondent No.1/mother has been declared incompetent or otherwise disentitled to have the custody of the minor child by any Competent Court. There is also no order passed by any Competent Court directing that the custody of the minor child/respondent No.2 shall not remain with the mother".

Thus, the court dismissed the petition. 

For Applicant: Advocate Ranno Rajak 

For Respondent: Advocate Wakeel Khan