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Legal procedure to determine guardianship of minor child

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High Court Division :
(Criminal Miscellaneous Jurisdiction)
AKM Asaduzzaman J
Md Ashraful Kamal J  
Judgment
January 26th, 2016
Khandaker Abdul
Halim and others Petitioners
vs
State and others………Opposite-Parties
Code of Criminal Procedure (V of 1898)
Section 100
The question of guardianship cannot he decided under Section 100 of the code and there is no scope to determine the guardian-ship of any minor child without having a proper suit to file.
Considering these aspects of this case as well as examining the victim this court fells that the learned Magistrate committed no illegality in allowing the victim to stay under the custody of her father, the order of the learned Additional Sessions Judge appears to be arbitrary. The question of guardianship cannot he decided under Section 100 CrPC and there is no scope to determine the guardianship of any minor child without having a proper suit to file. The victim is hereby allowed to keep under the custody of her father as well as grandfather. However for the ends of justice, we further directed the father of the victim to allow her mother to see the victim at least once a week.
Md Mamun Aleem with Md Asaduzzaman Siddiqui, Advocates- For the Petitioners.
Muzibur Rahman Advocate- For the Opposite Party No.2.
Forhad Ahmed DAG with Bashir Ahmed, Advocate-For the State.
Judgment
AKM Asaduzzaman J : This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 5-11-2015 passed by the Additional Sessions Judge, 1st Court, Tangail in Criminal Revision No. 109 of 2014 reversing those dated 25-8-2014 passed by the Executive Magistrate, 'Ka Anchal' Tangail in Case No. P 309 of 2014 under Section 100 of the Code of Criminal Procedure, 1898 allowing the victim to keep under the custody of the 2nd partly and her father should not be quashed.
2. Facts relevant for disposal of the Rule are that the opposite party No.2 as 1st party filed Case No. P 309 of 2014 under Section 100 of the Code of Criminal Procedure, 1898 in the Court of. Executive Magistrate, Ka Anchal, Tangail alleging" inter alia, that the 1st party filed Dowry Case against her husband (Md Belal Hossain) and at one stage the husband took her in his home and further tortured her for dowry and she then left home taking her minor son Arafat Khan with the help of her brothers. The opposite-parties forcibly confined her 9 years old minor daughter Khandaker Maesha Bilkis against her will and they have been keeping her in different place and she is crying for her mother and is required to be recovered. The 1st party subsequently filed a case against her husband in the Nari-o-Shishu Nirjatan Tribunal and in which ease he was taken to jail.
3. The learned Executive Magistrate by an order dated 25-8-2015 after hearing the parties as well as in presence of the victim Maesha Bilkis, allowed the victim Maesha Bilkis to keep.
Under the custody of her father as well as grandfather and disposed of the case.
4. Challenging the said order the opposite party No.2 preferred the revision application under Section 435" together with Section 439A of the Code of Criminal Procedure, 1898 before the Court of Sessions Judge, Tangail which was renumbered as Criminal Revision No. 109 of 2014.
5. Thereafter the case was transferred to the Court of Additional Sessions Judge, 1st Court, Tangail for trial, who by the impugned order allowed the revision and set aside the order of the learned Magistrate and gave a direction to make over the victim to the custody of her mother within, next 30 days by the impugned order dated 5-11-2015.
6. Challenging the said order, the petitioners obtained the instant Rule.
7. Mr Md Mamun Aleem, the learned Advocate appearing for the petitioners submits that the mother of the victim is a jobless lady and she is unable to maintain the victim and she willfully has been living with her grandfather and grandmothers under the custody of her father since 16-11-2013 and none of them have confined her. He further submits that victim's mother lastly left the house of her husband on 21-2014 keeping the victim there and father is the legal guardian of the victim and the learned Magistrate rightly and legally passed the order, directed the victim to keep under the custody of her father but the learned Sessions Judge most illegally held that the welfare of the victim would be safe in the custody of her mother since now victim is a minor girl aged about only 10-1/2 years, Moreover, the learned Sessions Judge most illegally held that the victim is now staying with her grandfather in the remote area and accordingly for the ends of justice, the victim need not to be in the custody of her mother and has passed the order illegally without considering that the victim desires to stay in her father's custody. The impugned order would give an extra pressure upon the victim's mind and ultimately damaged her life and accordingly the impugned order is not sustain-able in law.
8. Mr Muzibur Rahman, the learned advocate appearing for the opposite party No.2 submitted that the learned Magistrate failed to consider the true aspect of the case and passed the order of custody illegally and the learned Sessions Judge directed the 2nd party to give the victim custody to her mother and the victim is a minor girl aged about 10-1/2 and her welfare can only he looked into properly by her mother. The learned Sessions Judge has rightly passed the impugned order and he committed no illegality in the impugned order.
9. Heard the learned advocate of both the sides and perused the impugned order together with the supplementary-affidavit.
10. In this case, the custody of the minor girl has been challenged and the petitioner prayed for custody of minor girl who is admittedly remaining under her father. The learned Magistrate while examining   the victim passed the order to keep the victim under the Custody of her father but  the learned Sessions Judge is most arbitrarily allowed the revision. Although this is not a case for determining the guardianship of a minor girl and the case is only for custody of the minor girl.
11. In order to determine the real fact of this case, by the order of this court victim was brought before this court and she was examined by the court. After examining the victim, we found that the victim although is a minor girl of aged about 10-1/2 years but she is very smart as well as quite understandable to the quarries made by the court. She replied the  question very smartly in our query. We find that the victim herself is staying on her father's custody and she has been admitted to the school at Dhaka and is very happy to stay with her father and grandfather, who are now residing at Dhaka along with her grandmother. By producing a nikahnama, the opposite party tried to establish the case that the father got a second marriage and accordingly the victim is not safe under the custody of her father, since there is her step-mother.
12. If their argument is taken to be true that the victim is now staying at her step-mother's custody even than her face does not reflect that she is under any threat or passing hardship staying with her step-mother rather she looks very happy to stay with her step-mother.
13. Considering these aspects of this case as well as examining the victim this court fells that the learned Magistrate committed no illegality in allowing the victim to stay under the custody of her father, the order of the learned Additional Sessions Judge appears to be arbitrary. The question of guardianship cannot he decided under Section 100 CrPC and there is no scope to determine the guardianship of any minor child without having a proper suit to file. The impugned judgment before us is apparently illegal and no sustainable in law. Accordingly we find merit in this Rule.
14. In the result, the Rule is made absolute.
15. The victim is hereby allowed to keep under the custody of her father as well as grandfather. However, for the ends of justice, we further directed the father of the victim to allow her mother to see the victim at least once a week.
Communicate the judgment at once.

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