JUDGMENT : 1. Rule. Heard finally with consent of parties. 2. This is a petition under Article 226 of the Constitution of India for quashing the order passed by the Judicial Magistrate (First Class), Nagpur under section 97 of the Code of Criminal Procedure. 3. The facts giving rise to the petition are as follow - The petitioner and respondent no.1 are husband and wife. They have a child aged 3 years. The relations between the husband and the wife are strained. They are, therefore, living separately. The relations were so strained that even report was required to be filed in the Police station. Offences under Section 323, 504 and 506 were registered by the present respondent. In that incident, it is alleged that Rishi . a child . was forcibly taken away by the present petitioner. After the report was lodged, the child was handed over in custody of the mother i.e. the respondent. On 10/1/2007, while the respondent was absent, the petitioner came there and again took away the child forcibly and illegally. It is also alleged that the petitioner's mother is a boot legger and it is not desirable to keep the child in the custody of the petitioner. With these allegations, an application under Section 97 of Cr.P.Code was filed before the Judicial Magistrate (F.C.). The Judicial Magistrate (F.C.) issued a search warrant and the child was produced before the court. The child was handed over to the respondent-wife. Being aggrieved by that order of issue of search warrant, this writ petition has been filed. 4. I have heard the learned counsel for the parties. 5. The petitioner contends that the respondent herself handed over the custody to him, while the respondent contends that on 10/1/2007 the petitioner took away the child in her absence. The fact is that the child was with the petitioner on date of issue of warrant. 6. The child is born on 18/12/2003. He is just 3 to 4 years old. It is not expected of him to decide as to with whom he should live. The learned counsel for the respondent contended that the custody of a child under five years of age should be always with mother. He submitted that, therefore the mother only should have custody of the child. He is just 3 to 4 years old. It is not expected of him to decide as to with whom he should live. The learned counsel for the respondent contended that the custody of a child under five years of age should be always with mother. He submitted that, therefore the mother only should have custody of the child. He also contended that the petitioner had taken away the child without consent and kept it with him and that amounts to an offence. The argument has no force. What Section 97 of Cr.P.Code requires is that the confinement must amount to an offence. Father is always a natural guardian and, therefore, if the father takes away the child and keeps it in his custody, in no way it could be said that child is in confinement and such confinement amounts to an offence. Such custody may amount to confinement when any party is given exclusive custody by the order of the court and the other party takes away the child and retains its custody. In this case, the child though taken away by the father and retained him in his custody, that could not amount to an offence, since there is no order of any court granting exclusive custody to respondent-wife. This court recently in 2005(4) Mh.L.J.54 (Vishal .vs. Smt.Megha) held as follows- .The question of invoking power under section 97 of the Code is available only if it is asserted and is established before the Magistrate, prima facie though, that confinement of any person in the circumstances a amounts to an offence. By no stretch of imagination, custody of the children with the real father by itself can amount to an offence. Something more had to be alleged and established to support that position. No such allegation is forthcoming in the application, as has been filed. Viewed in this perspective, the Magistrate could not have assumed jurisdiction to issue search warrant in such fact situation, as the basic requirement of section 97 of the Code is not fulfilled. Impugned order passed by the Magistrate set aside. This decision will not preclude respondent no.1 wife to take recourse to such other remedy, as may be permissible by law for securing custody of the child from the applicant, husband. 7. In another decision in 2004 Mh.L.J.253 (Marotrao .vs. Usha), this court observed as follows- 18. Impugned order passed by the Magistrate set aside. This decision will not preclude respondent no.1 wife to take recourse to such other remedy, as may be permissible by law for securing custody of the child from the applicant, husband. 7. In another decision in 2004 Mh.L.J.253 (Marotrao .vs. Usha), this court observed as follows- 18. Under Section 6 of the Hindu Minority and Guardianship Act, the mother is guardian of the child who has not completed age of 5 years and may have custody of minor. According to Section 6, preferential guardian is the natural father, except when minor has not completed age of five years, in which circumstances the custody shall be that of mother. The use of the word .ordinarily. used in section 6 reflects legislative intent to be that welfare of the child has to be kept in view and thereafter custody should be decided. Such a question of welfare of the child is to be decided by the Civil Court in an appropriate proceeding as observed by the Apex Court in AIR 1987 SC 3 , Mrs. Elizabeth v. Arvand. Paramount consideration is welfare of the child. Therefore, the learned Additional Sessions Judge was not justified to direct that the children shall be produced by applicant no.1 for handing over them in the custody of the mother non-applicant till they attain majority. Such direction is not contemplated in terms of section 97 of Criminal Procedure Code.. 8. The learned counsel for the respondent relies on a decision of this court in 1992 Cri.L.J.1688 (Purushottam Thakur .vs. Warsha). In that case, the court has observed as follows – There is no dispute that the mother is entitled to the custody of the child below the age of 5. The children were in custody of mother, when she reached her parents' place for next delivery. The children were taken away from her custody by her husband on the assurance of returning them to her custody. However, the husband took the children to his parents residing at .D.. When wife's brother approached husband for bringing back the children, he was driven out. Wife was prevented from love and affection and custody of the children. In the circumstances, search warrant under S.97 was held justified and proper.. 9. I am, however, in the agreement with decision of this Court in Marotrao's case and Vishal Jiwan's case. When wife's brother approached husband for bringing back the children, he was driven out. Wife was prevented from love and affection and custody of the children. In the circumstances, search warrant under S.97 was held justified and proper.. 9. I am, however, in the agreement with decision of this Court in Marotrao's case and Vishal Jiwan's case. The material question is whether the magistrate could in such case issue warrant and hand over custody. The answer has to be in the negative. Until it is shown that the confinement amounts to an offence, there could be no order to issue warrant. In this case, there is nothing to suggest so. The order suffers from illegality and is, therefore, liable to be quashed and set aside. Petition allowed