Full Judgment
K.P. Mohapatra, J.
1. This revision is directed against the order dated 19-7-1989 passed by the Sub-Divisional Magistrate, Sambalpur, to recall the search warrant under Section 97 of the Criminal P.C. ('Code' for short) issued by him earlier.
2. Facts may be stated in brief. Indisputably the petitioner and the opposite party are husband and wife respectively. They lived together and a son was born to them. His age would now be about one and half years. According to the petitioner, the opposite party had some mental illness and was under treatment as an indoor patient of the V.S.S. Medical College and Hospital, Burla in the middle of the year 1988. Since then she was being administered medicines. On the advice of the doctors the child was separated from the opposite party. Later, the father of the opposite party took her away to his own village leaving the child with the petitioner. Since then she is not returning to the matrimonial home despite several attempts. According to the opposite party she was ill treated not only by the petitioner, but also by several family members. She was separated from the baby and was driven out at night from the matrimonial home. At that time the baby was forcibly snatched away from her and since then he has been kept by the petitioner. It is necessary that the child should be restored to her for his well being. So, at her instance a petition under Section 97 of the Code having been filed, warrant was issued for restoration of the child to her.
3. At the first instance, the Sub-Divisional Magistrate on being convinced that a case under Section 97 of the Code had been made out issued a search warrant to be executed by the police. On learning about the issuance of the search warrant, the petitioner appeared and filed an objection. The matter was heard in the presence of the learned Counsel of both parties and ultimately the impugned order was passed refusing to recall the warrant.
4. On the revision being filed, both the parties were noticed to appear so as to make an effort for reconciliation. They appeared and despite advice being tendered in the presence of their Counsel a reconciliation could not be effected.
5. Mr. B.P. Ray, learned Counsel appearing for the petitioner, urged that the child was not forcibly snatched away but, on the other hand, was left behind by the opposite party. Not only the petitioner, but also the members of his family are nursing the child very properly and as admittedly the petitioner is the father of the child, it cannot be said that the child has been confined and such confinement amounts to an offence so as to enable the Sub-Divisional Magistrate to issue the search warrant under Section 97 of the Code. Mr. S.K. Mund, on the other hand, urged that according to Section 6 of the Hindu Minority and Guardianship Act (hereinafter referred to as the 'Act'), the mother is the guardian of a minor child who has not completed the age of five years and so shall have the custody of the minor. In such circumstances, the petitioner cannot claim as the legal guardian and is not entitled to remain in custody of the child. So his act of confinement of the child amounts to an offence giving cause of action to the petitioner under Section 97 of the Code. In support of his contention, Mr. Mund placed reliance on AIR 1987 SC 3, Mrs. Elizabath Dinshaw v. Arvand M. Dinshaw, the facts of which were quite different and the well known maxim of the welfare of a minor child being the sole and predominant criterion whenever a question arises before the Court pertaining to the custody of the minor was pronounced.
6. According to the provisions of Section 97 of the Code, a search warrant cannot he issued automatically without application of judicial mind to the allegations made in the application. The expression 'reason to believe' implies a belief in judicial mind arrived at after consideration of the available materials without ignoring as far as possible to other side of the controversy. Before issuing a warrant for search, the Magistrate must have reasonable grounds to believe that the confinement in question is such that it amount to an offence. The Magistrate should, therefore, exercise due caution and circumspection in issuing a warrant under Section 97 of the Code.
7. A similar question as in this case came up for consideration before the Madras High Court. Ratnavel Pandian, J. (as his Lordship then was) in the case reported in 1981 Cri LJ NOC 113 (Mad), K. Sarasu v. Sengodan, held that if the father takes away his own child below five years of age from keeping of its mother, he does not thereby commit an offence because he is the natural guardian of the minor and the mother cannot have a permanent right of guardianship in preference to that of the father. The question as to whether the welfare of the child demands its custody to be with the mother or the father is a matter to be decided in Civil Court and cannot be gone into in a summary proceeding under Section 97 of the Code. With respect, I am in agreement with the above view.
8. The peculiarity of this case is that the opposite party was in fact mentally ill for some time and was under treatment as an indoor patient in the V.S.S. Medical College and Hospital, Burla. It was not unlikely that doctors had advised to separate the child from her on grounds of his health and safety. Although there are allegations and counter allegations to the effect that the opposite party left the matrimonial home keeping the child with the petitioner and the opposite party making out a case that she was driven away while the child was snatched away from her, it is not necessary to go into these controversial facts for the limited purpose of deciding the case under Section 97 of the Code. According to Section 6 of the Act, the preferential guardian is the natural father except that when the minor has not completed the age of five years, he shall be ordinarily with the mother. The use of the word ''ordinarily' connotes that it is not an invariable rule of law that in every case when a minor is not more than five years of age, the mother shall be his legal guardian and unless the custody of the child is with the mother, the custody of the child with the father shall be deemed to be an offence within the meaning of Section 97 of the Code. May be, in a particular case the mother is suffering from a virulent contagious disease or is absolutely made with tendency of violence. In such a case, Section 6 of the Act cannot be resorted to in order to see that custody of the minor child shall be with the mother. But the question of welfare of the child ultimately shall have to be decided by the Civil Court in an appropriate proceeding. In this case, the father is the natural guardian of the minor child. For the last more than six months the child is in the family of the father. I had occasion to see the child in Chambers during the proceeding when he was brought by the petitioner and his parents although on that day the opposite party remained absent. It cannot be said that the father and the grand parents so also other members of the family will not look after the welfare of the child. On the other hand, they will take proper care of the child who is a son to one of the members of their family so as to bring him up properly. After all the son will not throughout his life stay with the mother. In due course he will go in for education and will ultimately matured into manhood to be a proper citizen. Therefore, I am of the view that by remaining in custody of his own son the petitioner has not committed an offence such as illegal confinement, so that action under Section 97 of the Code was warranted. In this view of the matter, I am unable to sustain not only the impugned order but also the order by which the warrant was issued.
9. Before parting with the case, I would observe that there is enough scope for reconciliation because, in my presence the husband gave out that he was ready and willing to accept the wife, while the wife showed her reluctance to go to the matrimonial home on the pretext of abuse and torture. A reconciliation undoubtedly will be the best course for the interest of the child.
10. For the reasons stated above, the criminal revision is allowed and the impugned order, as well as the order issuing the warrant, are set aside. The warrant is recalled.