JUDGMENT (CAV) D.N. UPADHYAY, J.-This Writ Petition (Criminal) has been filed for quashing of the order dated 1.8.2011 passed by the learned Chief Judicial Magistrate. Bokaro in Misc. Case No. 7/2011 whereby the learned Chief Judicial Magistrate. Bokaro has been pleased to issue search warrant under Section 97 of Cr. P.C in respect of the children namely Rishabh Singh (son). Tanya and Mahi (both daughters) who were born on 15.12.2005. 25.7.2007 and 3.11.2009 respectively as a result of the marriage solemnized between the respondent No. 2 Smt. Nidhi Singh and Shekhar Singh (son of the petitioner) and further directed to hand over the minor children to the respondent No.2 Smt. Nidhi Singh who is the mother of those children. 2. The brief facts of the case and reason behind passing of the impugned order are as under :- Smt. Nidhi Singh (respondent No.2) was married with Shekhar Singh (son of the petitioner Prakesh Singh @Shree Babu) on 21.1.2005 and after the marriage. Nidhi Singh started living with her husband and in-laws at Patna at their residence mentioned in this petition. Out of said wedlock. Nidhi Singh delivered three children namely Rishabh Singh (son), Tanya and Mahi (both daughters). But Nidhi Singh did not experience happy conjugal life and she was treated with cruelty and subjected to torture and assault on various occasions by various means for want of Maruti Esteem Car and other articles. It is also alleged that Rishabh Singh, after eight days of his birth was taken away from the lap of his mother Nidhi Singh (respondent No.2) and he was given to her only for the purpose of feeding. Sometimes Nidhi Singh was asked to reside at Patna and sometimes at Kolkata and sometimes at Mumbai. Her husband Shekhar Singh was also not taking care of her and she was subjected to ill treatment by him too. It is alleged that Nidhi Singh was driven out of her matrimonial home and since 29.4.2011. she has been living with her parent. Because the relation became strain due to demand of dowry and torture committed on her. Nidhi Singh rued a case vide Baridih P.S. Case No. 31 of 2011 under Sections 498-A, 323, 504/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against her husband and in-laws. she has been living with her parent. Because the relation became strain due to demand of dowry and torture committed on her. Nidhi Singh rued a case vide Baridih P.S. Case No. 31 of 2011 under Sections 498-A, 323, 504/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against her husband and in-laws. On the other hand husband Shekhar Singh also filed suit for seeking divorce and thus the litigation started between the parties and cases were instituted at the places suitable to them. Since Nidhi Singh was deprived of her children who were forcibly kept by the petitioner and his family members a petition under Section 97 of Cr. P.C. was filed before the learned Chief Judicial Magistrate Bokaro and the case was registered as Misc. Case No. 07 of 2011. After appearance of the parties and granting hearing to them the impugned order was passed and hence this writ petition before this Court. 3. The marriage between Shekhar Singh and Nidhi Singh (respondent No.2) was solemnized on 21.1.2005 and out of the wedlock aforesaid three children were born and petitioner happens to be grand father of those children. It is contended that learned Chief Judicial Magistrate. Bokaro has no occasion to pass impugned order on the basis of a petition filled by the respondent No.2. It is contended that aforesaid three children were left by the opposite party No. 2 and she came back to her parent's house at Bokaro. The children are living with their father who happens to be natural guardian and the children are being taken care of by the .grand parents and other family members of Shekhar Singh. The learned Chief Judicial Magistrate has travelled beyond jurisdiction by passing the impugned order under Section 97, Cr. PC and also by deciding custody of the children. By referring to Section 97. Cr. P.C. it was submitted that if any District Magistrate. Sub Divisional Magistrate or the Magistrate of 1st Class has reason to belief that any person is confined under such circumstances that confinement amounts to an offence he, may issue a search warrant. In the instant case, confinement amounts to an offence, was highly lacking because the children were residing 'with their natural guardian i.e. father and his family members. Sub Divisional Magistrate or the Magistrate of 1st Class has reason to belief that any person is confined under such circumstances that confinement amounts to an offence he, may issue a search warrant. In the instant case, confinement amounts to an offence, was highly lacking because the children were residing 'with their natural guardian i.e. father and his family members. Keeping the children by the father, under no stretch of imagination, could be considered a wrongful confinement and, therefore the learned Chief Judicial Magistrate, Bokaro has no jurisdiction to pass any such order considering facts and circumstances of the present case. The jurisdiction to decide custody of children or to appoint guardian against minor, is governed by "Guardianship and Wards Act. 1980" and "Hindu Minority and Guardianship Act, 1956" for which the District Judge/Family Court is having jurisdiction. The learned Chief Judicial Magistrate has gone to the extent of deciding custody of the children which is inherently wrong and therefore, the impugned order is liable to be set aside. It was further contended that the petitioners and his family member are taking all care and caution of the children and they have been admitted to Schools of good repute and all sorts of learning facilities and amenities are provided to them. All the family members of the petitioner ace very much keen and. interested in up-bringing the children and all sorts of good medical care are also provided to them. The paramount consideration is the welfare of the children to decide custody and the balance lies in favour of the petitioner and, therefore, in that respect too, the impugned order suffers from illegality. The petitioner has filed further supplementary affidavits in support of the contention made in course of hearing of this writ petition. The respondent No. 2 Nidhi Singh herself has stated in the petition that she is fully dependent on her parent and the family consists of many members including unmarried sisters. The father of respondent No.2 is the only earing member and, therefore, it is not possible for Nidhi Singh to maintain her three children. She is not employed and she does not have her independent source of income and, therefore, the future of the children are not safe and bright if they will be handed over to her. The father of respondent No.2 is the only earing member and, therefore, it is not possible for Nidhi Singh to maintain her three children. She is not employed and she does not have her independent source of income and, therefore, the future of the children are not safe and bright if they will be handed over to her. The petitioner has relied on the following judgments : (I) Ambeshwar Atmaram Sonar v. Nandabai D/o. Kashinath Sonar and another, 2010 (5) Mh L.J. (II) Atanu Chakraborty v. State of West Bengal and another, 2010 (2) CHN (CAL) 556; (III) Md. Abdur Rafique v. Mostt. Sakila Bibi, 2004 (3) CHN 174 C.R.R. No. 1808 of 1994; (IV) Sudarshan Sau and another v. State of West Bengal and another, 2007 (2) CHN 886 C.R.R. No. 331 of 2007; (V) Vishal Jivan Jogure v. Smt. Megha Visha Jogure, 2005 (4) Mh LJ 54. 4. On the other hand, the respondents-State of Jharkhand as well as Nidhi Singh (respondent No.2) have vehemently, opposed the arguments advanced on behalf of the petitioner. If was submitted that it is incorrect to say that Nidhi Singh left her children and returned back to her parent's house. The fact is that she was treated with cruelty and subjected to torture for want of more dowry demanded in terms of car, cash and valuables. She was not allowed to spend happy conjugal life with her husband. Her minor children were taken from her lap and the children were debarred from getting love and affection from their mother. The supplementary affidavit filed by the petitioner .indicates that Rishabh Singh, son of opposite party No.2, is living with his aunt (father's sister - FUWA) at Mumbai and the boy is suffering from mental illness, which is apparent from the medical certificate enclosed. The petitioner himself has admitted that Rishabh has been given in adoption to his aunt (FUWA) though that aunt is not entitled to take a child in adoption. She is a divorcee and working in a Company and having no time to look after the child Rishabh. She is also having her own child from her husband. It is known to everyone that a child can be given in adoption only with the consent of parent and it goes without saying that Nidhi Singh had never given her consent to give Rishabh in adoption to her aunt (FUWA). She is also having her own child from her husband. It is known to everyone that a child can be given in adoption only with the consent of parent and it goes without saying that Nidhi Singh had never given her consent to give Rishabh in adoption to her aunt (FUWA). Thus, it is clear that contention made by the petitioner is incorrect that the children are living with their father Shekhar Singh who is the natural guardian. It was pointed out that Tanya and Mahi were born on 25.7.2007 and 3.11.2009 respectively whereas Nidhi Singh was driven out from her matrimonial home on 29.4.2011. which indicates that the third daughter was hardly aged 1 year 4 months at the relevant point of time. The another supplementary affidavit filed by the petitioner indicates that Mahi Singh and Tanya were admitted to the Schools when they were hardly aged about 2 years. This also indicates that the petitioner and his family members are not having time to look after the children and the basic need of the girl child is not provided to them. When the girl child need care love and affection of her mother they were asked to go to School and sending School to the children of that age certainly amounts torture and', inhuman conduct and it would be not out of mention to say that it is a kind of child abuse. Welfare of child cannot be weighed by money and it is incorrect to say that only rich and influential persons are capable of taking care of their children. It was further submitted that in different judgments the High Courts have considered that sending child of tender age to School is a case of childhood lost and lost childhood children in future suffers with psychological problem and in the case at hand, it happened with Rishabh who is facing speech problem and other psychological deficiencies. It was fairly submitted that there are divergent view of different High Court with regard to use of Section 97 in such matters. Some of the High Courts have deprecated invoking Section 97. Cr.P.C. to decide custody of children but in some cases some of the High Courts have considered that even if the children are living with their father or mother and the children are not being taken care of, the order passed under Section 97, Cr. Some of the High Courts have deprecated invoking Section 97. Cr.P.C. to decide custody of children but in some cases some of the High Courts have considered that even if the children are living with their father or mother and the children are not being taken care of, the order passed under Section 97, Cr. P.C. can be sustained. In this regard, judgment reported in 1994(3) SCC 698 has been referred in which similar question were involved and the custody of the minor child aged about 8 years, was decided. The aforesaid child was denied with the loving care of his mother and thus, the Hon'ble Supreme Court, in conclusion, has granted custody of the child in favour of the mother. He has further relied in the following judgments : (I) 1981 (2) SCC 277 ; (II) 2001(5) SCC 247 ; (III) 2005(5) SCC 359 ; (IV) 2003(3) PLJR 60 ; (V) 2009(1) SCC 42 ; (VI) 1992 Cr. Law Journal 1688; (VII) 1998 Cr. Law Journal 230; (VIII) AIR 2001 Cal 88 ; (IX) AIR 1978 M.P. 24 . (X) 1983 Cr. Law Journal 98; (XI) In the case W.P. (HB) No. 388 of 2010 (before Jharkhand High Court) At the conclusion, it was submitted that Hon'ble Apex Court as well as different High Courts have considered the welfare of the child while deciding their custody in some of the cases, the order passed under Section 97, Cr.P.C. was upheld but in some of the cases petition filed under Article 226 of the Constitution of India was considered to decide the issues with regard to custody of the children. 5. Despite the spring season being round the corner, there are deserts in the hearts and despite the rains of bliss outside, there are draughts in the lonely hearts. Having heard rival submissions and after going through the judgments referred to above, a complex issue has come up before this Court if there is conflict between the parents. who would be competent in comparison to other to take care of such, children who will have to lead a life under care and custody of single parent because father as well as mother both are natural guardian of their children. 6. In our country, traditionally the responsibility for care and protection of children lies with the parents (family). who would be competent in comparison to other to take care of such, children who will have to lead a life under care and custody of single parent because father as well as mother both are natural guardian of their children. 6. In our country, traditionally the responsibility for care and protection of children lies with the parents (family). Children were the recipient of welfare measures in the patriarchal society and while looking after their children, there was no realization that children are also individuals with their own rights. Even the constitutional guarantee of fundamental rights of children is more need based rather than right based. It is a widely accepted fact that children are the most important assets of any nation. In fact a nation's future primarily depends upon what its children become when they grown up as citizens and this depends upon what priorities are accorded to children's health and holistic development and what kind of education and care are given to them right from their conception up to the stage of their education and training and finally their placement in some suitable economically gainful and professionally attractive job. Every child belongs to a family and deserves their love, care, respect and security, it is only within family that children secure their emotional and physical well being and live their childhood to the full and prepare for a future where their potentials are fulfilled. Child rearing can be - viewed largely as matter of parents duty by nurturance stimulation and the affection that the children receive from their parents. A closure consideration of the meaning of nurturance indicates its importance at every phase of development. The human child is born helpless and perishes if he or she is not nourished, protected, soothed and stimulated by their parent. Now-a-days we have been experiencing that nuptial tie is going weaker and weaker and matrimonial discord are on the rise at an alarming rate. The sanctity of marriages is under cloud which in a great way not only affecting the society at large but also the children born out of said wedlock. Home can be wonderful place to live but continuous conflicts between the parties of a marriage disturb the atmosphere at home and create havoc on the members of the family. The sanctity of marriages is under cloud which in a great way not only affecting the society at large but also the children born out of said wedlock. Home can be wonderful place to live but continuous conflicts between the parties of a marriage disturb the atmosphere at home and create havoc on the members of the family. To lead a happy marital life, shed of brick wall arid concrete roof is not needed what needed is love, respect, confidence and trust between the spouses. The foundation of happy home is love share of joys and sorrow. When a girl enters to her matrimonial home after her marriage she is having colourful dream but when she is not being welcomed with those dreams rather treated with cruelty and subjected to torture for want of more dowry those dreams disappear and she will have to face the consequences of such life. 7. I am not going to observe as to why such things happen or who is at fault but the subject involved in this case is the welfare of the child born out of wedlock of such parent. It is wedlock that in their fight, more often on account of egoism the children suffer. In the present case, the petitioner has taken stand that he is having sufficient means to provide all facilities to the children for their upbringing and his family members shall take care and give protection to them. On the other hand the respondent No. 2 had left the children and taken shelter in the house of her parents and she has no income to meet the expenses' required for maintenance of three children. The respondent No. 2 presents a different logic that welfare of the children cannot be weighed -in terms of money, facilities, number of houses or the financial might of either the father or the mother. No matter a father can provide the child with finance and facilities but he will not be able to be a life time companion or friend when a child grows up. He cannot be guardian at times or friend for ever and in case of a girl child the companion and guidance of mother is always must. Father's\busy schedule at work will not let him be with child for a long time. In such case relationship between father and the child do not develop. He cannot be guardian at times or friend for ever and in case of a girl child the companion and guidance of mother is always must. Father's\busy schedule at work will not let him be with child for a long time. In such case relationship between father and the child do not develop. The petitioner himself has admitted that the two girl children were admitted to school at the age of two years. 8. I have carefully considered the views and stand taken by both sides and after having brain storming session come to a conclusion that mother is the life time friend, path finder and a guide of a child. She spend her quality time with her children to make them competent to meet the challenges. Ultimately children want to be felt loved and be secure under the soft and gentle affection of the mother's shade and such dedication and affection is rarely seen in the father and, therefore, protection and means of father cannot be the ground for custody of the child. There are instances that a poor and uneducated mother by doing hard work provided higher education to her children and made them to stand in their life. 9. The identical fact was available in the case of Gaurav Nath Pal v. Sumedha Nag Pal, reported in (2009) 1 SCC 42 and their Lordships have decided to put the children under the custody and care of the mother giving visitation right to the father. In the said judgment of Gaurav Nath (Supra), the other important judgments were referred and the provisions contained under Section 6 of the Hindu Minority and Guardianships Act. 1956 was referred and discussed. 10. Before adverting any opinion in favour or against the impugned order under challenge. I would like to refer Section 97 of Cr. P.C. which reads as follows :- "97. Search for persons wrongfully confined. 1956 was referred and discussed. 10. Before adverting any opinion in favour or against the impugned order under challenge. I would like to refer Section 97 of Cr. P.C. which reads as follows :- "97. Search for persons wrongfully confined. 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." It is true this section can be invoked only in the circumstances when the confinement of the persons amounts to an offence, Certainly in all the circumstances where the children are being kept in the custody of their only guardian like father or mother the custody of children cannot be considered as of their wrongful confinement and this is what has been discussed by different" High Courts and the Apex Courts. In the judgments cited from both sides, what I mean to say is that the circumstances under which a child is living in the custody of his parent- either father or mother is an important factor to decide whether such custody of such child is legal or illegal and whether it amounts to an offence ? To answer this question. I have gone through the facts and circumstances placed before me. The sum and substances of which I would like to reproduce. 11. It is the admitted case of the petitioner that the boy Rishabh Singh is compelled to live with his aunt (FUWA) at Mumbai and the plea is that the boy has been given in adoption to her. Needles to say such adoption is invalid and if it is so certainly keeping of Rishabh Singh under the custody of her aunt (FUWA) can not be considered a legal or authoritative custody. According to the respondent No.2 she was driven out from her matrimonial home while the 3rd issue was hardly 1 year 4 months. Needles to say such adoption is invalid and if it is so certainly keeping of Rishabh Singh under the custody of her aunt (FUWA) can not be considered a legal or authoritative custody. According to the respondent No.2 she was driven out from her matrimonial home while the 3rd issue was hardly 1 year 4 months. The two girl child who are below the age of 4 years were denied to the love and affection of their mother and kept under the custody of their grand parent. Nor only that it is also admitted by the petitioner that those two girl child were admitted to the School at the age of 2 years which also indicates that they were not properly taken care of and no member in the family had time to spend with them. It is always expected that the girl child needs guidance and protection of her mother and. therefore. keeping those girl child in the situation seated above could not be considered legal and the view taken by the Calcutta High Court is correct to the extend that in such cases if the learned Magistrate after considering materials on record passes any order in the welfare of child even under Section 97 of Code of Criminal Procedure that can be sustained. 12. There is a thin line in demarcating the use of Section 97. Cr.P.C. in such circumstances and the Court should always be cautious and they should not go beyond their jurisdiction. It is also needed while passing order under Section 97, Cr.P.C. In such situation the Court should not become sentimental and the order should not get influenced. Therefore it is observed that Section 97, Cr.P.C. should not be sparingly used for deciding the custody to the children or for issuance of search warrant. 13. In view of discussions made above and also in view of the facts and circumstances appearing in the case at hand. I do not feel inclined to set aside the impugned order as a whole but latter part of the order whereby the Court has decided the custody of the children is hereby set aside. Since this petition has been preferred before this Court under Article 226 of the Constitution of India. I do not feel inclined to set aside the impugned order as a whole but latter part of the order whereby the Court has decided the custody of the children is hereby set aside. Since this petition has been preferred before this Court under Article 226 of the Constitution of India. I feel it desirable in the interest and welfare of those three children that they shall be given in the custody of mother till the issue of guardianship is decided by a competent Court of law. The Petitioner Shree Prakesh Singh @ Shree Babu and Shekhar Singh who are grand father and father respectively of those three children are directed to produce Rishabh Singh (son). Tanya and Mahi (both daughters) before this Court positively on 7th November, 2012 in order to hand over the children to their mother - respondent No.2. Liberty is granted to grand father and father of the children to visit the place of stay of the children in the interval to two months preferably on the weekend. The Court having jurisdiction to decide the custody of the children shall be at liberty to consider the facts and circumstances brought before him without being influenced with any observations and findings given by this Court in this Order. 14. Put up this case under the heading for 'Orders' on 7th November, 2012 for compliance of this order. Petition partly allowed.