JUDGMENT Hon'ble Mr. Justice S.R. Sen 1. The instant petition is directed under Section 482 Cr.P.C. against the judgment and order dated 22.12.2011 passed by the Court of learned Addl. District & Sessions Judge-II in Criminal Complaint No. 192 of 2011. 2. The brief facts of the case in nutshell is that, the petitioner and the respondent were living together as husband and wife, though they were not legally married. Out of a said cohabitation a baby boy was born on 1.10.2005. And due to some differences both the parties started living separately and baby boy is in custody of the petitioner. 3. Petitioner initially moved an application under section 125 Cr.P.C praying for maintenance for her minor son (illegitimate child). After consideration of the petition No. 123 of 2005 learned Magistrate 1st Class Order for the maintenance of Rs.500/-per month for the said child. 4. Subsequently petitioner find it difficult to maintain the child with a meager amount of Rs.5,00/-. So, she filed another petition under section 127 Cr.P.C in the year 2011 for enhancement of the maintenance from Rs.500 to Rs.2,000/-for the said child. The said application was registered as Crl. Misc. Application No. 22 of 2011. 5. Learned Magistrate 1st Class in Crl. Misc. Application No. 22 of 2011 by Order dated 15.9.2011 enhanced the maintenance from Rs.500/-to Rs.1800/-w.e.f. October, 2011. 6. Respondent being aggrieved by the said enhancement order dated 15.9.2011 passed by the Court of Magistrate 1st Class in Crl. Misc. Application No.22 of 2011 prefer a Criminal revision/appeal before the Court of District & Sessions Judge, who in turn endorse the matter to Addl. District & Session Judge-II, Aizawl, but actual prayer in the revision petition/appeal by the respondent was for the custody of the minor child. Learned Addl. District & Sessions Judge-II vide his Judgment & Order dated 22.12.2011 allowed the revision petition and directed that the minor 7. Being aggrieved by the said judgment and order this instant appeal is before this court moved by the petitioner under section 482 Cr.P.C. 8. Mr.Michael Zothanklhuma, learned senior counsel assisted by Mr. Lalfakawma, learned counsel submitted that the learned court of Addl. District & Sessions Judge passed the impugned order dated 22.12.2011 without considering both the facts and circumstances and law as such the impugned judgment is erroneous both in law and facts. Learned counsel for the petitioner also further submits that how Addl. Mr.Michael Zothanklhuma, learned senior counsel assisted by Mr. Lalfakawma, learned counsel submitted that the learned court of Addl. District & Sessions Judge passed the impugned order dated 22.12.2011 without considering both the facts and circumstances and law as such the impugned judgment is erroneous both in law and facts. Learned counsel for the petitioner also further submits that how Addl. District & Session Judge sitting as Criminal Court entertained the petition for custody of the child, learned Court below had no jurisdiction to pass such impugned judgment. Dispute could have been redress only under Customary Law or Guardian and Wards Act.1890. Therefore, the impugned judgment and order dated 22.12.2011 need to be set aside and quash. On the other hand, learned counsel for the respondent Mr. Lalsawirema, submitted that the instant petition filed by the petitioner is not in accordance with the law because they could have come by way of revision petition under section 397 read with 401 Cr.P.C. instead of 482 Cr.P.C. Therefore, this petition need to be dismissed. 9. Learned counsel for the respondent in support of his submission relied on AIR 1992 SC 604 , State of Haryana and Ors. vrs Bhajan Lal and Ors. and in counter reply, the learned counsel for the petitioner Mr.Michael Zothankhuma, learned senior counsel assisted by Mr. Lalfakawma, learned counsel submits that since learned Court below has entertained the petition of custody as revision petition, he had no other way but to come and approach the court under section 482 Cr.P.C. in support of his submission relied on 2005 2 SCC 571 para 5 & 6 and 1997 4 SCC 241 para 14. 10. After hearing the submissions forwarded by the learned counsel at bar crux issue arise before this court whether the impugned judgment and order dated 22.12.2011 is in accordance with law. 11. From record it appears that learned Magistrate 1st Class by this order dated 15.12.2005 had granted Rs.500/-monthly maintenance to the son of the petitioner and respondent till he attain the age of majority and directed the Commandant, 2nd IR Battalion to deduct the said amount and to handed over the petitioner/complainant. 12. From record further appears that, petitioner had subsequently approached the learned Court of the Magistrate, Aizawl for enhancement of the maintenance from Rs.500/-to Rs.2000/-. 12. From record further appears that, petitioner had subsequently approached the learned Court of the Magistrate, Aizawl for enhancement of the maintenance from Rs.500/-to Rs.2000/-. And after hearing both the parties and considering the application under section 127 as well as written objection learned Magistrate enhanced the maintenance from Rs.500/-to Rs.1800/-vide his order dated 15.9.2011 13. Interestingly, it is noticed that immediately after the enhancement of the maintenance order dated 15.9.2011, a petition was moved to the court of District & Session Judge by respondent seeking for custody of the said son on the ground that, the said son is deprived of sufficient attention and he also displeased with the petitioner that she is not bringing the child in proper way. 14. On endorsement learned Addl. District & Sessions Judge-II vide his order dated 22.12.2011 considered the petition as Crl. revision and passed an order for the custody of the child in favour of the respondent on the ground that since natural Guardian of mother had got married with another boy and now look after by his grand-mother the baby is reported about 6 years old and if his natural father prayed to look after the baby. I find that, it will be better for the baby and for his future career to get education, care, etc. I find no reasonable ground to reject the Petition of the Petitioner Ramthangmawia. 15. On perusal of the petition as well as order dated 22.12.2011 I am really shock how custody of child and the maintenance issues has been amalgamated by a court. I fully agree with the submission made by the learned counsel for the petitioner that a Criminal court cannot decide the custody. The appropriate forum could be either Customary Court or Court of District Judge under the Guardian and Wards Act, 1890. More over in the instant case it is also noticeable that learned Addl. District & Sessions Judge has taken the petition of the respondent as gospel truth and came to conclusion that, the child in mother's custody is not safe without taking any evidence which is not proper. While deciding the custody of a minor child, it is a primary duty of the court to determine beyond any doubt about the well being of the child and that is possible and can safely rely on after recording evidence and not otherwise. 16. While deciding the custody of a minor child, it is a primary duty of the court to determine beyond any doubt about the well being of the child and that is possible and can safely rely on after recording evidence and not otherwise. 16. Ultimately, duty of the court is to deliver substantial justice. Court cannot confine itself on mere technicalities 17. In this instant case in hand, if this court does not interfere with the impugned Judgment and Order dated 22.12.2011 only on the ground that petitioner had failed to approach this court under section 397 read with 401 Cr.P.C. and approached this court by way of petition under 482 Cr.P.C. and turn down the petition, in that case in my consider view substantial justice will fail to meet the end of justice. 18. I am of the further considered view, since in justice is caused to the petitioner due to the impugned judgment and order dated 22.12.2012 and order passed beyond jurisdiction and law, so, it become imperative to interfere. 19. Accordingly this court set aside and quash the impugned judgment and order dated 22.12.2011. 20. Respondent is at liberty to approach appropriate Forum if he desire so. 21. With this observation the direction petition is allowed and stands disposed of. Petition allowed