S.97 of cr.p.c.
adv.durgadas k.kulkarni
(Querist) 17 November 2013
This query is : Resolved
R/Sir,
Can Judicial Magistrate of Maharashtra State issue search warrant for the production of two Mahomedan children who are in wrongful confinement of father in Gujrat?
Is there any different procedure?
Advocate M.Bhadra
(Expert) 17 November 2013
Yes,mother can file an application u/sec.97 Cr.P.C.in Judicial Magistrate Court or she can file an application under Muslim laws in Family or District Court.
In Muslim Laws the custody of a child is given to the mother this right is called as right of "Hizanat". But it is not an absolute right; it is made in the interest of the child. The custody can be given to the father if the mother is disqualified by the provisions of the law.
All the schools of Muslim law recognize the right of the father to the custody of his minor children in the following two cases: (i) on the completion of the age by the child upto which mother or other females are entitled to its custody, and (ii) in the absence of the mother or other females who have the right to hizanat of minor children. The father cannot be deprived of the right of hizanat of his male child of seven years if he is not found to be unfit.
The father’s right of hizanat continues till the child attains puberty. It appears that among the Shaffis and the Hanbalis, the father is entitled to the custody of his female children till they are married.
R.K Nanda
(Expert) 17 November 2013
nothing to add more.
V R SHROFF
(Expert) 17 November 2013
two Mahomedan children who are in wrongful confinement of father in Gujrat?
In father's custody & wrongful confinement???
Sec 97 supports if she claim, children at unknown place with a person, or friend / uncle's confinement..
This is a matter of Lawful custody., if children are too young.
& "nothing to add?? ""
Raj Kumar Makkad
(Expert) 17 November 2013
Section 97 Criminal Procedure code can be applied before SDM and not before JMIC.
V R SHROFF
(Expert) 17 November 2013
THE CODE OF CRIMINAL PROCEDURE, 1973
97. Search for persons wrongfully confined. -If any District Magistrate, Sub¬-divisional Magistrate or Magistrate of the First Class [JMFC]has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue, a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems
Rajendra K Goyal
(Expert) 19 November 2013
Agree with the advise of expert raj kumar makkad ji and other experts.
T. Kalaiselvan, Advocate
(Expert) 20 November 2013
As per mahomedan law, father is the natural guardian, the mother can keep the custody of the girl child till she attains puberty and as far as the male child it is upto seven years of age and in such events the father is the natural guardian. Thus the age factor will determine the the provisions of Sec 97 Cr.P.C in accordance with the muslim personal law
V R SHROFF
(Expert) 20 November 2013
Rajendra, read sec 97 cr p c produced above, properly then support " JMFC CANNOT" ...........
"& U support false statement!!
for what ??
Points ? Like & "nothing to add?? ""
I myself RECD ORDERS AND OBTN CUSTODY BEFORE FEW MONTHS BY ORDER OF JMFC!!!
IT IS PROVIDED IN LAW, AND IS CRYSTAL CLEAR..................
prabhakar singh
(Expert) 20 November 2013
There can be no denial that not only DM/SDMsbut also JMFCs have jurisdiction vested in them u/s 97 Cr.P.c.
BUT a careful reading of the provisions of S. 97 Cr.P.C. makes it abundantly clear that the Magistrate is not empowered to issue search warrant under this section on the mere allegations made in the affidavit field along with the petition before him. The expression has reason to believe that any person is confined under such circumstances that the confinements amounts to an offence, requires the Magistrate on guard before he issues search warrant.
