The report of the Bailiff is placed on record. After recovery, he had handed over the infant child to the temporary custody of the petitioner.
2. The matter primarily relates to the custody of Majid A.I an infant child of about one year of age.
He was born out of the wedlock of the parties, which unfortunately ended in divorce between the spouses.
3. The learned counsel for the petitioner has submitted that the life of the infant will be endangered if he is taken out of the custody of his mother. As such it is contended that the petitioner is entitled to the custody of the child instead of the father i.e. Respondent.
4. The learned counsel for the respondent has not disputed the infancy of child but has submitted that this petition is not well intended as the child was voluntarily handed over to the respondent in view of some Panchayat decision to which the parties had mutually agreed. In this connection it is alleged that the respondent had returned articles of dowry to the petitioner in consideration of 'the custody of the child to her. However, the learned counsel for respondent has no objection if the temporary custody of the child is given to the petitioner provided it shall be subject to any proceeding or decision of the Court of competent jurisdiction such as the Court of Guardian Judge or the Civil Court as the case may be vis-a-vis custody of the child and the agreement regarding the question of dowry as based on the alleged agreement between the parties.
5. The learned counsel for the respondent has lastly submitted that the respondent being the father of the child may be permitted to see the child occasionally.
6. The learned counsel for petitioner has however, denied about the alleged agreement regarding return of dowry, etc. Which is allegedly result of undue influence and coercion.
7. I have heard the learned counsel for the parties. The alleged agreement about the return of dowry vis-a-vis custody of child is not relevant while disposing of the petition under section 491, Cr.P.C. At this stage, an interim order regarding the custody of child is to be made keeping in view the immediate welfare of the child. He is admittedly an infant suckling child and should not be separated from his mother till the matter is finally decided by the Court of competent jurisdiction.
The petition is accordingly allowed and the child is given on purely temporary custody to his mother i.e. Petitioner.
The parties shall be at liberty to move a Court of competent jurisdiction for the final settlement of issues raised in this petition. Needless to say that this order will not effect the course of the proceeding or decision of the trial Court in any manner, which of course shall be given in the light of the evidence led by the parties at trial. Parties are left to bear their own expenses.