[2025:RJ-JP:19748] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Revision Petition No. 1514/2018 Sangeeta W/o Shri Harkesh D/o Late Shri Pooran Chand Jat, Aged About 35 Years, At Present Nangla Doongar, Police Station Khairthal, Tehsil Kishangarh Bas, Distt. Alwar (Raj.) ----Petitioner Versus 1. State Of Rajasthan, Through P.p. 2. The Superintendent Of Police, Alwar, Raj. 3. The Station House Officer, Police Station Khairthal, Distt. Alwar. 4. Harkesh S/o Shri Sardari Lal R/o Kalgaon, Police Station Tijara, Distt. Alwar (Raj.) ----Respondents For Petitioner(s) : Mr. Azad Ahmed For Respondent(s) : Mr. Vijay Singh Yadav, PP with Mr. Gaurav Gupta, AAAG HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 09/05/2025 1. Service complete. 2. Instant S.B. Criminal Revision Petition is preferred aggrieved from order dated 19.07.2018 passed by learned Sub-Divisional Magistrate, Kishangarh Bas, District Alwar under Section 98 of Cr.P.C. 3. Learned counsel for petitioner submits that petitioner has filed an application under Section 98 of Cr.P.C. before the SDO, Kishangarh Bas stating that respondent no.4 who is husband of petitioner has forcefully kept both minor daughters in his custody and confined them at his place. He further submits that SHO, PS. [2025:RJ-JP:19748] (2 of 4) [CRLR-1514/2018] Khairthal has submitted report in favour of petitioner but despite this report, the SDO has refused for issuance of search warrant. 4. Aforesaid contentions were opposed by learned Public Prosecutor. 5. Section 98 of Cr.P.C. empowers the District Magistrate, Sub- Divisional Magistrate or Magistrate First Class to order immediate return of a women or a female child to her family member or restoring to guardian. 6. Herein this case, the statement of petitioner was recorded on 15.05.2018 by police and it indicate that the marriage of petitioner and respondent no. 4 was solemnized in the year 2012 and out of wedlock they were blessed with two female children. Due to some matrimonial dispute, the petitioner (wife) was allegedly thrown out of matrimonial house and the petitioner has registered FIR No. 55/2018 against her husband and mother-in- law. The husband of petitioner was arrested and produced before the Court. Now, an application under Section 98 of Cr.P.C was filed on 11.05.2018, and the SHO after recording the statement of petitioner has submitted a report in favour of petitioner but on 19.07.2018 the SDO has refused for issuance of search warrant. 7. The matter in hand clearly indicate that there is dispute between husband and wife and allegedly the wife is not residing with husband since February, 2018 whereas this application was filed in May, 2018 and order was passed in July, 2018. 8. When asked from learned counsel how jurisdiction of SDO or Magistrate First Class can be invoked when there is a dispute of custody of children between husband and wife then he submits [2025:RJ-JP:19748] (3 of 4) [CRLR-1514/2018] that the law provides for restoration of female, if she was forcibly kept by any person or removed from lawful guardianship. 9. Having considered the submissions and also the material available on record, it is apparent on record that the matter pertains to dispute about custody and guardianship of two minor children between wife and husband. At present these two minor girls are in custody of respondent no.4 husband since February, 2018 and we are considering this revision petition after seven years and three months. The guardianship issue between two hindus is primarily governed by the Hindu Minority and Guardianship Act, 1956. Similarly, the issue of custody is determined by the Family Court. While determining the custody it is necessary to consider the age of child, parental fitness, parental capacity, relationship between child and each parent and welfare of child. 10. The issue of custody requires to be adjudicated as per provision of Section 26 of Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956 and Guardian and Wards Act, 1890. The competent court is family court or the court having powers to adjudicate the issue of custody and guardianship. Certainly, a criminal court or SDO or CWC has no authority to decide custody or guardianship matter in case of break-down of marriage between husband and wife. 11. Learned counsel for petitioner after considering aforesaid offers to withdraw instant revision petition with liberty to take steps as per law by filing appropriate petition before the competent court having jurisdiction to decide the issues relating to custody or guardianship of children. He further submits that since [2025:RJ-JP:19748] (4 of 4) [CRLR-1514/2018] this petition is pending for last seven years, therefore, the concerned court may be directed to dispose of the case as early as possible. 12. After considering the submission, the instant revision petition is dismissed as withdrawn with liberty as aforesaid. 13. In case the petitioner (mother of two minor children) files a petition before the competent court in Rajasthan, having jurisdiction to decide issue of custody and guardianship then the petition be decided as early as possible. 14. With aforesaid, the instant revision petition and misc. application, if any, stands disposed of. (ASHOK KUMAR JAIN),J CHETNA BEHRANI /62