Court Holds Custody Disputes Must Be Resolved Under Guardians and Wards Act, Not Criminal Procedure Code
In a significant judgment delivered on September 17, 2026, the Madhya Pradesh High Court, Jabalpur Bench, clarified the scope of Section 97 of the Criminal Procedure Code (Cr.P.C.) concerning the recovery of minor children from their natural guardians. The Court, presided over by Justice Pramod Kumar Agrawal, dismissed a petition filed by a grandmother seeking to recover her grandson from the custody of his mother, holding that the remedy for child custody disputes lies under civil law, specifically the Guardians and Wards Act, rather than the criminal law provisions under Section 97 Cr.P.C.
The case arose when the petitioner, Smt. Maya Rajput, grandmother of the minor child, alleged that the child's mother, respondent Smt. Mona (also known as Kavita), was subjecting the child to cruelty and wrongful confinement. The petitioner had filed an application under Section 97 Cr.P.C. before the Sub Divisional Magistrate (SDM), seeking issuance of a search warrant to recover the child from the mother's custody. The SDM dismissed the application as not maintainable, a decision upheld by the Additional Sessions Judge upon revision.
Justice Agrawal observed that the mother is the natural and legal guardian of the minor child, and mere allegations of improper conduct without material evidence do not amount to wrongful confinement under Section 97 Cr.P.C. The Court emphasized that Section 97 empowers a Magistrate to issue a search warrant only if there is reason to believe that a person is confined under circumstances amounting to an offence, which was not the case here.
The Court cited earlier decisions, including the Supreme Court's ruling in Ramesh v. Laxmibai (1998) 9 SCC 266, which held that Section 97 Cr.P.C. does not apply where a child is living with his or her parent. It also relied on recent decisions from the Madhya Pradesh High Court in Lalit S/o Shri Kanhaiyalal Joshi v. Sub Divisional Magistrate (2023) and Jaya Chakravarti v. State of M.P. (2021), which reaffirm that custody disputes should be adjudicated under the Guardians and Wards Act or Hindu Minority and Guardianship Act.
The Court noted the absence of any order from a competent civil court declaring the mother unfit or disqualified from having custody. It further clarified that the SDM and Executive Magistrates do not have jurisdiction to wrest custody of a child from a natural guardian through criminal proceedings under Section 97.
In conclusion, the High Court dismissed the petition, upholding the rulings of the SDM and the Revisional Court, and reiterated that allegations of misconduct by a parent cannot justify invoking criminal law for custody matters. The Court directed that any custody dispute should be pursued in the appropriate civil forum to protect the welfare of the child.
This ruling reinforces the principle that child custody issues are primarily civil matters and provides clarity on the limited scope of criminal provisions in this sensitive area.
Bottom Line:
Section 97 Cr.P.C. cannot be invoked for recovery of a minor child from the custody of his natural guardian/mother, in absence of material showing wrongful confinement amounting to an offence; remedy for custody lies under the Guardians and Wards Act or other appropriate civil law.
Statutory provision(s):
Section 97 Cr.P.C., Section 98 Cr.P.C., Section 482 Cr.P.C., Guardians and Wards Act, Hindu Minority and Guardianship Act
Smt. Maya Rajput v. Smt. Mona (Kavita), (MP)(Jabalpur) : Law Finder Doc Id # 3004113
