Can a search warrant be issued under Section 97 in respect of a minor wife kept by her husband against her wishes? Discuss

Question: Can a search warrant be issued under Section 97 in respect of a minor wife kept by her husband against her wishes? Discuss [D.J.S. 1989]

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Answer

Section 97 of CrPC deals with Search for persons wrongfully confined.

It states that if any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class 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 proper.

In the case of Harihar v. State Of Uttar Pradesh, 1963 CriLJ 541, it was observed by Justice D.S. Mathur, It is only wrongful confinement which is an offence and is punishable under the I.P.C. Confinement by a person who has the authority to keep in his custody the person confined cannot be said to be wrongful nor can that person be said to be acting wrongly, otherwise the guardian shall not be able to properly bring up minors in his custody, all the more, those minors who have somewhat gone astray.

This rule can be applied not only to minor unmarried persons but also to a minor wife. In other words, where the husband keeps his minor wife at his house, may be against her wishes, he cannot be said to have been acting wrongly and thereby guilty of the offence of wrongful confinement.

Hence, in view of the above decision, it can be said that a search warrant cannot be issued under Section 97 in respect of a minor wife kept by her husband against her wishes.

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