Judgment : This revision case raises an interesting question of law whether the mother of a minor child can move a criminal Court, claiming the custody of the child from its father on the sole ground that she has got the paramount right of guardianship over her minor child in preference to that of the child’s father. 2. The brief facts of the case are: The petitioner Smt. Sarasu is admittedly the wife of the respondent and they are Hindus. The petitioner gave birth to two children, viz., Saravanan (male) now aged about 5½ years and Kanchana (female) now aged about 3½ ears. It is averred in the affidavit filed by the petitioner that the respondent, her husband, developed illicit intimacy with one Suguna and about three year ago discarded the petitioner and the two children and drove them out of the house. Consequently, the petitioner, with her two children took refuge in her parents’ house and began living with them. Since then the petitioner has been nurturing the children, taking care of their welfare and giving them good education. While so, on 26th November, 1979, at about 2-30 p.m. while the petitioner with her children was in her aunt’s house at Malikuntham village for brief stay the respondent with six of his associates came there and forcibly took away the two minor children. The petitioner gave a complaint about this incident at the Mecheri Police Station; but no case was registered and no action was taken. Hence, she filed a petition under section 97 of the Criminal Procedure Code, before the Judicial First Class Magistrate No. II, Salem, seeking a warrant for search and production of the minor children complaining that both the children were illegally and wrongfully confined by the respondent in his house and that such a confinement might lead to their mental depression and retardation resulting in stunting growth, mental as well as physical and apprehending danger to her children. 3. The learned Magistrate seems to have issued a search warrant, in pursuance of which the two minor children were produced before the Court by the respondent who has submitted before the Court that he, being the father of the children, cannot be ordered to hand over custody of the children to the petitioner. 3. The learned Magistrate seems to have issued a search warrant, in pursuance of which the two minor children were produced before the Court by the respondent who has submitted before the Court that he, being the father of the children, cannot be ordered to hand over custody of the children to the petitioner. The learned Magistrate passed the impugned order which reads as follows: "Under the Hindu Law, the father is the lawful guardian of his children and his rights of guardianship are paramount to those of any other person. The alleged removal of the minor children by the respondent from the custody of the petitioner cannot amount to kidnapping from lawful guardianship. It is open to the petitioner to seek remedy in civil Court. The respondent is permitted to take back the minor children. There search warrant will be recalled. The proceedings are closed". The present revision is as against the above Order. 4. During the hearing of this revision petition, the two minor children were produced before this Court by the respondent. In spite of the best advice given by this Court to the petitioner and the respondent to come to an amicable settlement, they are not able to patch up their differences and arrive at a settlement despite the fact that the learned Counsel appearing for both the parties also made their best efforts to bring the parties together. 5. Since it was found that there were no possibility of the parties settling their differences, learned Counsel appearing for parties were asked to address their arguments on the merits of the case. 6. Mr. T. Martin, learned Counsel for the petitioner, submitted that the respondent and his six associates formed themselves into an unlawful assembly, criminally trespassed into the house of the petitioner’s aunt where the petitioner was residing with the children for a temporary stay and forcibly removed the children from the lawful custody of the petitioner who has been bringing up the children in a good atmosphere, providing them with good education, and therefore, in the interests of the welfare and the future career of the children, they must be handed back to the petitioner. Secondly, he raises a contention that the custody of the second female child, who has not completed five years of age, if not of both the children, should be with the petitioner only since, as per the proviso to section 6 (a) of the Hindu Minority and Guardianship Act of 1956 (XXXII of 1956), the custody of such a minor aged less than five years, shall ordinarily remain with the mother. 7. Section 97 of the Criminal Procedure Code, 1974, corresponding to section 100 of the old Code, clearly lays down that a search warrant can be issued only if the Magistrate empowered under the section has reason to believe that the person concerned is confined under such circumstances that the confinement ambunts to an offence, viz., whether a person is wrongfully confined, irrespective of whether that person is or is not the victim of kidnapping or abduction. The jurisdiction conferred, by this section is not as wide as that conferred by Article.226 of the Constitution, where under a writ of habeas corpus is issued for the production into the Court of a person detained or unlawfully confined, to enable the Court to determine the lawfulness or otherwise of such detention or confinement and if the confinement is found to be unlawful, to set the victim concerned at liberty. 8. The Magistrates, while exercising their powers under section 97 of the Code, should act with due caution and circumspection in taking action on applications made by a party, lest one may be wise to abuse the provisions of this section to obtain easy redress without having recourse to the appropriate proceedings before a civil Court, as prescribed by law for the purpose. The pre-requisite essential condition to be satisfied before invoking section 97 is that the Magistrate should besatisfied about the factum of wrongful confinement and illegal custody. Once the Magistrate has no reason to ‘believe that the confinement is wrongful, viz., that it amounts to an offence, he has no jurisdiction to issue the search warrant under this section. The pre-requisite essential condition to be satisfied before invoking section 97 is that the Magistrate should besatisfied about the factum of wrongful confinement and illegal custody. Once the Magistrate has no reason to ‘believe that the confinement is wrongful, viz., that it amounts to an offence, he has no jurisdiction to issue the search warrant under this section. In Chagan Raj v. Hera Lal Doosaji1, a boy was taken away by the natural father from the house of the, alleged adoptive father, alleging that no adoption had really taken place and the mother of the alleged adoptive father applied for recovery of the boy, by invoking section 100 of the old Code corresponding to section 97 of the present Code. The Calcutta High Court held that this section did not apply as it was doubtful whether the confinement amounted to an offence. 9. In In re, Chowdarayya2, the facts were accused 1 and P.W. 1 were married several years ago and P.W. 1 was deserted and her suit for maintenance was compromised in 1933. In 1936 P.W. put the decree in execution and got delivery of the lands. While so, in 1937, accused-1, husband of P.W.1, with the help of three others, was alleged to have kindnapped his own son who had been brought up by P.W. 1 from the date of his birth and who was in her keeping on the complaint preferred by P.W.1, accused 1 was prosecuted for an offence under section 364, Indian Penal Code, but was convicted under section 363. As against this conviction, he preferred an appeal before the High Court. Burn, J., taking into consideration the exception to section 361, Indian Penal Code, held as follows: “Now if a person who in good faith believes himself to be entitled to the lawful custody of a child cannot commit an offence under section 361, Indian Penal Code, it seems to follow a fortiori that a person who is in fact the father of the child, and therefore in law entitled to the lawful custody of the child cannot come within the scope of section 361, Indian Penal Code. In this case it can be said on behalf of accused-1 that he did not merely in giod faith believe himself to be entitled to the lawful custody of his child, but that he was beyond the possibility of any challenge entitled to the lawful custody of the child, and that therefore his act in taking the child from the keeping of his not her could not amount to an offence of kidnapping from lawful guardianship. I think this contention is correct.” 10. I would like to refer to another decision viz., Ismail Abbobaker v. State.1 The parties in that case were Muslim. The question for consideration that arose in that case was whether the second accused therein, who was the father of a child aged about 2½ years, which child was in the lawful keeping of its mother, had, along with three others, committed an offence punishable under sections 361, 363, 448 and 451, Indian Penal Code, in taking way the said child from its mother. Though the Court found that since the parties were governed by the Sunni School of Mohamedan Law, the mother was the person entitled to its custody until the child reached the age of 7, it held that no offence had been committed by the accused in taking away the child from the custody of its mother. The learned Judge, after referring to the decision of the Privy Council in Ikambandi v. Raji Mutsaddi2 to various text books on the subject observed, as follows: “The mother has only the right to the custody of the minor until a particular age. That will not make the father criminally liable if he takes the child from the custody of the mother, the reason being that when the father takes the child from the custody of the mother, he is only taking the child to 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 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. A legal guardian is certainly a lawful guardian and if he takes a 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 minor 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 P.W. 1, any offence has been committed by the accused.” I am in respectful agreement with the view expressed in the above decisions. In the case on hand, the respondent is admitted the father of the children, the male child being 5½ years old and the female child 3½ years, and the spouses started living separately due to some misunderstanding ‘since three years ago and the respondent took away the children from the keeping of the petitioner in the month, of November, 1979. The only contention that has been urged by Mr. Martin is that under section 6 (a) of the Hindu Minority and Guardianship Act (XXXII of 1956) the petitioner, who is the mother, is entitled to have custody of at least the female child aged less than five, if not the other child, and therefore, the respondent’s taking away the said female child amounts to an offence. Further, he contends that as the removal of both the children by the respondent from the keeping of the petitioner is for the ulterior purpose “of subjecting them to a wrongful confinement, ”which may ultimately end in their danger, the respondent should be held to have committed an offence in respect of both the children, and as such the Court below ought to have directed the respondent to hand over custody of the children to the petitioner. 11. Section 6 (a) of the Hindu Minority and Guardianship Act reads that the natural guardian of a Hindu minor in respect of the minor’s property (excluding his or her undivided interest in joint family property) are, in the case of a boy or an unmarried girl, the father, and after him, the mother. 11. Section 6 (a) of the Hindu Minority and Guardianship Act reads that the natural guardian of a Hindu minor in respect of the minor’s property (excluding his or her undivided interest in joint family property) are, in the case of a boy or an unmarried girl, the father, and after him, the mother. This is subject to the proviso that the custody of the minor who has not completed the age of 5 years, shall ordinarily be with the mother. A plain reading of this section would clearly indicate that the natural guardian in respect of a boy or an unmarried girl, is always the father and the mother comes only after Him. Even in the case of minor children who have not attained the age of 5 years, under this law, the father continues to be the natural and legal guardian. What the proviso conteimlates is that custody of the minor child till it reaches the age of 5, shall ordinarily be with the mother. This shows that the mother does not become the natural guardian excluding the father. The proviso only says that the mother shall ordinarily be the custodian of such children of tender years. Under section 6 (a) when the father is alive, he is only the natural and lawful guardian of the children and during his lifetime, the mother has got only a right, in ordinary circumstances, to be the custodian of the minor children of tender years upto the age of five. Even this right to custody in respect of such children is always subject to the superior right of the father, the natural and lawful guardian. 12. The Hindu law vests the guardianship of the minor children in the sovereign as btrents patriae of which the father comes first and next to him, the mother. No doubt, the preferential right of the father as a natural guardian should be subordinated to and even overridden by the sole and paramount consideration that the welfare of the minor is to be the determinative factor in all these matters. But, the question whether the welfare of the children demands their custody to be with the mother or with the father, is a matter to be decided in a civil Court and that cannot be gone into in a proceeding under section 97, Criminal Procedure Code. 13. But, the question whether the welfare of the children demands their custody to be with the mother or with the father, is a matter to be decided in a civil Court and that cannot be gone into in a proceeding under section 97, Criminal Procedure Code. 13. Both the children, as pointed above, have not only been produced before the Court "below but also before this Court by the respondent. Under these circumstances, the apprehension entertained by the petitioner that their custody with the respondent is fraught with danger cannot be countenanced. The grievance of the mother that the children have been deprived of good education and motherly care, is not a matter to be agitated before a criminal Court in a proceeding under section 97, Criminal Procedure Code. 14. In the result, I hold that the respondent cannot be said to have committed any offence in taking away the children from the keeping of the petitioner, the mother. Therefore, the question of the criminal Court exercising its jurisdiction under section 97, Criminal Procedure Code, and directing the respondent to hand over the children to the custody of the mother, does not arise in this case. Consequently the order of the Court below does not warrant any interference. Accordingly, this revision is dismissed. Revision dismissed.