Judgment :- 1. The first petitioner is the son of the second petitioner. The first respondent is the divorced wife of the 1st petitioner. The child, Mohammed Ismail aged 4 years was born to the 1st respondent before she was divorced by the 1st petitioner. The child continued to live with the 1st respondent. In M.C. 44 of 1974 of the Chief Judicial Magistrate, Manjeri, maintenance at the rate of Rs.15/- per mensem was awarded to the child. On the 16th of June, 1977, the first respondent filed an application before the Chief Judicial Magistrate, Manjeri stating that on 13-6-77 while she was living in house No. 166 of Ward No. III of the Cherukavu Panchayat along with her father and son Mohammed Ismail, the petitioners herein got into the house and forcibly took away the child. The complaint of the Ist respondent to the police was of no avail. She went to the house of the 2nd petitioner and sought return of the child. Her request was turned down and she was subjected to intimidation. According to her, her son is being kept in unlawful custody in a locked room of the house and the purpose is to evade and nullify the order for maintenance. Being a child under seven years, she is entitled to have his custody. The Chief Judicial Magistrate took the sworn statement of the 1st respondent. From the petition and the sworn statement, the court gathered that the child is being kept in unlawful custody. As requested by the 1st respondent, a search warrant was issued for the recovery of the child. Against the above order, the present petitioners filed a revision petition before the Court of Session, Manjeri. They contended that for the past one year, the child was living with the 1st petitioner. The first respondent has remarried and is residing with her new husband. After her re-marriage, the 1st respondent is not entitled to the custody of the child. Even assuming that the mother is entitled to the custody of the child, the father as the legal guardian committed no offence by keeping the child with him and, therefore, there was no occasion for the issue of a search warrant for recovery of the child from the house of the petitioners. 2. Even assuming that the mother is entitled to the custody of the child, the father as the legal guardian committed no offence by keeping the child with him and, therefore, there was no occasion for the issue of a search warrant for recovery of the child from the house of the petitioners. 2. The Sessions Judge held that the order of the Chief Judicial Magistrate issuing search warrant was neither improper nor irregular and that the remedy of the revision petitioners was to approach the Chief Judicial Magistrate, represent their case and get a considered order. The petitioners challenge the correctness of the above order of the Sessions Judge; 3. The search warrant in this case was issued under S 97 of the Code of Criminal Procedure (new Code) which reads: "Search for persons wrongfully confined. If any District Magistrate, Sub-Divisonal Magistrate or Magistrate of the first class has reason to believe that any person ii 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 to 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." The section is practically a reproduction of S.100 of the Code of Criminal Procedure, 1898 (old Code). The language of the section makes it clear that before a search warrant is issued, the Magistrate should have reason to believe that the alleged confinement amounts to an offence. 4. It will be advantageous to refer to some of the decisions wherein the scope and application of S.100 of the old Code and the rival claims of the parents to the custody of their minor child have been considered. 5. In Aboobaker v. Staff of Kerala (1967 KLT. 563) a father along with some others were convicted for offences punishable under S.363, 448 and 451 read with S 34 IPC. for kidnapping a child aged 21/2 years who was in the custody of his mother. The parties were Muslims. The question arose as to whether the removal of. the child by the father was an offence under S.361 IPC. for kidnapping a child aged 21/2 years who was in the custody of his mother. The parties were Muslims. The question arose as to whether the removal of. the child by the father was an offence under S.361 IPC. The reasoning of the learned judge Mathew J. is contained in the following extract from the judgment: The mother has only a right to the custody of the minor until a particular age. That will not make the father criminally liable if he takes the minor from the custody of the mother, the reason being that when the father takes the minor from the custody of the mother, be is only taking the minor to the custody of the lawful guardian. The father, according to the Privy Council, is the natural and legal guardian of the minor. A legal guardian is certainly a lawful guardian, and if he takes a minor child from the custody of the mother who is certainly not the legal or natural guardian, though entitled to the custody of the child until it reaches a particular age, can he be said to commit the offence of kidnapping? I think not. When a father takes his minor child from the custody of the mother he is not taking the child out of the keeping of the lawful guardian, The right of the mother to the custody of the minor child is something different from the right of the lawful guardian. The right of the mother to the custody of the child is not an absolute right. The right is subject to the superior right of lawful guardian. I do not think that in taking the minor child from the custody of pw.1 any offence has been committed by the accused." 6. Chagan Raj v. Hera Lal (AIR 1920 Calcutta 562), a complaint was filed stating that the adopted son of the complainant's daughter-in-law who was living with her was removed from her house by his natural father without her consent and was not brought back Before any search warrant was issued, the accused produced the boy before the court and admitted having entered into a contract for giving the boy in adoption but denied the fact of adoption. He put forward a plea of misrepresentation and other circumstances invalidating the contract. He put forward a plea of misrepresentation and other circumstances invalidating the contract. A Division Bench of the Calcutta High Court held that under the above circumstances, it was very doubtful if S.100 of the Code of Criminal Procedure applied to the case The order issued by the Magistrate directing the child to be made over to the complainant was set aside and the parties were directed to settle their differences amicably or to seek their remedy in a Civil Court. 7. Mathur J. of the Allahabad High Court decided a similar question in Harihar v. State of Uttar Pradesh (1963 (2) Crl. Q. 541). 1n that case, the Magistrate issued a search warrant on the allegation by the mother of a minor that her daughter was wrongfully confined by one Harihar. Harihar claimed to be the husband of the minor. The marriage was, however, denied by the mother. After recording evidence, the Magistrate was impressed that there was marriage and directed the husband to execute a bond for taking the custody of the girl. The mother challenged the order in revision. The learned judge stated: "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 When the person was not confined in such circumstances that the confinement amounted to an offence, no application for issue of a search warrant under S.100 Cr. PC. was maintainable." 8. Banarsi Lal v. Neelam (AIR. 1969 Delhi 304) was a case where the mother of a child was accused of wrongful confinement by the child's father. Dua, C. J. observed: "It is extremely difficult for me to hold that the custody of Smt. Neelam of her own infant child amounts to an offence under this provision of law and that, for this reason, the learned Magistrate must be deemed to have reason to believe that the confinement amounts to an offence as contemplated by S.100, Cr. PC. S. 100, Cr. PC. S. 100, Cr. PC is of course a provision of emergency, but this by itself does not mean that the Magistrate acting under this section is to issue warrants of search automatically without applying his judicial mind to the allegations contained in the application and to the other material which may be available to him. The expression "reason to believe," which is the real core of this Section, implies a belief in judicial mind arrived at after considering all the available material with a sense of responsibility and effort of mind, without ignoring, so far as possible the other side of the controversy. This is a judicial duty and its performance rules out a superficial and arbitrary approach. The Magistrate must have reasonable grounds to believe that the confinement in question is such that it amounts to an offence. In my opinion, the impugned order of the learned Magistrate is difficult to sustain on the existing record and I am inclined to agree with the learned Additional Sessions Judge and quash the order issuing the search warrants." 9. In Hasmat Ali v. Suraya Begum (AIR. 1971 Allahabad 260), the parties were Muslims., There was a divorce between the mother and father of a minor male child aged 4 years. The mother moved for the custody of the child under S.25 of the Guardians and Wards Act alleging that the boy was taken away from her on some pretext by the father. Under S 25 (1) of the Guardians and Wards Act, if a ward leaves or is removed from the custody of a guardian, the Court may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered to the custody of the guardian. The question arose whether the mother was entitled to get back the child relying on the above provision. The court observed: "Under the Mohamedan Law the mother is entitled to the hizanat of her male child until he has completed the age of seven years and of her female child until she has attained Puberty. The question arose whether the mother was entitled to get back the child relying on the above provision. The court observed: "Under the Mohamedan Law the mother is entitled to the hizanat of her male child until he has completed the age of seven years and of her female child until she has attained Puberty. The right continues though she is divorced by the father of the child unless she marries a second husband in which case the custody belongs to the father." The court, however, held that hizanat is not guardianship but only custody for the rearing up of the child and that father being the lawful guardian of the minor, the mother was not entitled to get custody of the minor by availing the provisions contained in S.25 of the Guardians and Wards Act. 10. The above decision and the decision in Banarsi Lal v. Neelam (AIR. 1969 Delhi 304) have been referred to in Sk. Razak v. Riyasathbi (1975 Crl. L. J. 1131). Therein also it was the mother of a Muslim minor boy who moved for a search warrant being issued. The father after divorcing the mother married again. At the instance of the mother, the court allowed maintenance to the child at Rs. 15/-. After the order for maintenance, the father filed an application under the Guardians and Wards Act for the custody of the child which was dismissed. The boy had been admitted to the school. While so, the father went with some friends, made a row, assaulted the mother and forcibly took away the child. The mother moved for a search warrant. A show cause notice was issued to the father. After hearing the objections of the father, a search warrant was issued. A revision petition filed by the father was dismissed. The court after hearing the parties directed the father to deliver the child to the custody of the mother, as the child was below seven years of age. 11. I shall now attempt at a brief review of the cases referred to above. In Aboobaker v State of Kerala (1967 KLT. 563), the father was charged for an offence under S.361 IPC. for removing a boy below seven years from the custody of the mother. S.361 IPC deals with kidnapping from lawful guardianship. 11. I shall now attempt at a brief review of the cases referred to above. In Aboobaker v State of Kerala (1967 KLT. 563), the father was charged for an offence under S.361 IPC. for removing a boy below seven years from the custody of the mother. S.361 IPC deals with kidnapping from lawful guardianship. What the court held is that the father himself being the lawful guardian committed no offence by removing the child from the mother who was entitled only to custody. It may be noted that different note has been struck by other High Courts. Sec Law of Crimes by Ratan Lal-22nd Edition, Page 923. In Chalan Raj v. Hera Lal (AIR. 1920 Calcutta 562), the adoption of the boy itself was disputed and the boy himself was produced before court before the search warrant was issued Therefore, there was no necessity for the issue of search warrant.. In Harihar v. State of Uttar Pradesh (1963 (2) Cr. L. J. 541), the minor concerned was found to have been married to the accused, as such the accused was her guardian and, therefore, no search warrant was issued. 1n Banarsi Lal v. Neelam (AIR. 1969 Delhi 304), search warrant was refused at the instance of the father because the mother was entitled to custody of the child below five years. In Hasmat Ali v. Suraya Begum (AIR. 1971 All. 260) the question involved was the applicability of S.25 of the Guardians and Wards Act. It was only in Sk. Razak v Riyasathbi (1975 Crl. L. J. 1131) that the question whether search warrant can be issued at the instance of a muslim mother when her male child aged below seven years is taken away by force from her custody has been considered. The father, after having been denied custody of the child by the court, did a daring act in taking him away by force, keeping him under confinement and refusing to send him to school The court rightly held that the Magistrate had reasonable grounds to believe that the confinement amounted to an offence. 12. In the instant case, the award of maintenance shows that the child was in the custody of the mother after the divorce. The boy being aged only four years, the mother was in law entitled to such custody. 12. In the instant case, the award of maintenance shows that the child was in the custody of the mother after the divorce. The boy being aged only four years, the mother was in law entitled to such custody. It is revolting to modern sense of justice and fair-play that a person who has lawful custody of the minor should be deprived of such custody by crude means which has no sanction under law. Removal of the child using physical force from the custody of the mother is prima facie a wrongful act. Keeping the child beyond the reach of the person who is entitled to its custody would amount to wrongful confinement. The Chief Judicial Magistrate had, therefore, reason to believe that the confinement amounted to an offence for the purpose of issuing a search warrant. If the petitioners have a case that the mother forfeited her right to custody on account of her remarriage, the proper course is to produce the child and place their case for consideration by the Court so that the court may pass the appropriate orders. The order passed by the Chief Judicial Magistrate does not warrant interference. The petition is, therefore, dismissed. Dismissed.