The Madhya Pradesh High Court has held that allegations questioning a mother's conduct or character are not, by themselves, sufficient to establish that her minor child is being wrongfully confined. Justice Pramod Kumar Agrawal observed that a search warrant under Section 97 of the Code of Criminal Procedure (CrPC) cannot be used merely to recover a child from a parent's custody without material indicating wrongful confinement.
In an order dated September 17, 2026, the Court dismissed a petition filed by a child's paternal grandmother challenging the rejection of her application seeking the child's recovery from his mother.
Background
The grandmother approached the Court after the Sub-Divisional Magistrate (SDM), Ashta, in Sehore district, rejected her application under Section 97 CrPC. The Additional Sessions Judge subsequently upheld that decision on December 8, 2017.
The grandmother claimed that the child's mother was residing with another person and had kept the child in her custody. She also alleged that the mother and the person with whom she was residing had subjected the child to physical cruelty. According to her, the child's father was prevented from meeting him, prompting her to approach the police and subsequently seek a search warrant.
Opposing the petition, the mother's counsel argued that she was the child's natural and legal guardian. The respondents maintained that the child's custody with his mother could not, in the circumstances established on record, be treated as wrongful confinement warranting a search warrant.
After examining the record, Justice Agrawal noted that the child was residing with his mother and that no material established wrongful confinement. The Court also found no order from a competent court barring the mother from retaining custody, nor any finding that she was legally disqualified from having it.
The Court emphasised that allegations concerning a parent's personal conduct cannot automatically justify the use of criminal procedure to recover a child.
It observed:
"The mere allegation that the conduct or character of the mother is not proper, by itself, cannot lead to the conclusion that the minor child is in wrongful confinement within the meaning of Section 97 of the Cr.P.C."
The High Court relied on earlier decisions, including Jaya Chakravarti v. State of Madhya Pradesh and Lalit S/o Kanhaiyalal Joshi v. Sub Divisional Magistrate, Khargone. It also referred to the Supreme Court's ruling in Ramesh v. Laxmibai, which addressed the limits of invoking Section 97 CrPC to recover a child from a parent's custody.
Explaining the legal requirement, the Court noted that Section 97 applies when there is reason to believe that a person is confined in circumstances amounting to an offence. The provision cannot be invoked simply because a relative disputes the parent's suitability to retain custody.
The High Court held that the SDM had committed no error in rejecting the grandmother's application and that the Additional Sessions Judge had rightly affirmed that decision.
Finding no grounds to interfere under Section 482 CrPC, which empowers the High Court to exercise its inherent jurisdiction, Justice Agrawal dismissed the petition.
