P.S. Brahme, J.

1. 1. This criminal revision application is preferred by the applicants herein challenging the order passed by the Additional Sessions Judge, Achalpur on 16-9-1999 in Criminal Revision No. 6/1999, allowing the revision application filed by the non applicant herein and, directing the applicant No. 1 to produce the applicants No. 2 to 4 before the Judicial Magistrate, First Class, Daryapur, for handing over the custody of the children to the non applicant.

2. 2. Material facts of the case may be stated in brief as follows

-The non applicant Sau. Usha Pachare is legally wedded wife of the applicant No. 1 -Marotrao Pachare and their marriage was performed about 9 years back. As usual, after marriage they lived together and cohabited and three children namely applicants No. 2 to 4, were born to the non-applicant out of this wedlock.

.3. The non applicant filed an application under section 97 of the Criminal Procedure Code on 4-1-1999 in the court of

.judicial Magistrate, First Class, Daryapur requesting for issuing of production warrant for producing the children (applicants No. 2 to 4) before the Court and for handing over them to her custody. In her application she has alleged that the applicant No. 1 has driven her out of the house and he has snatched away the custody of applicants No. 2 to 4 from her.

2. 4. The applicant No. 1 resisted the claim of the non-applicant contending that the non-applicant for the reasons best known to her left her matrimonial home leaving the children in the custody of the applicant No. 1 about three months earlier to the presentation of the application in the Court of Judicial Magistrate first Class, Daryapur,

3. 5. The learned Magistrate taking into consideration the factual position, as also the legal position as to the custody of minor children reached to the conclusion that the non-applicant wife has failed to make out a case of wrongful confinement of the children or any danger to their life.

.6. Learned Magistrate also taken into consideration admitted fact that the children are living with the applicant No. 1 for more than 3 months as per the statement of the non-applicant. The Court also found that there was no material on record to show that the applicant no. 1 has wrongfully confined the children. He also found that the applicant - wife has failed to substantiate her allegations in the application that she was driven out from the house and the children were taken away from her custody. The learned Magistrate, therefore, was of the view that merely to get the custody of the children recourse to the provision under section 97 of the Criminal Procedure Code for issuance of production warrant is not at all warranted. The wife also being natural guardian of the children was entitled to get custody of the children and

.for that she has independent remedy in Civil Court. In keeping with these conclusions, the learned Magistrate rejected the application.

4. 7. The non-applicant taking exception to the order passed by the Magistrate rejecting her application, preferred Criminal Revision Application No. 6/1999 before the Additional Sessions Judge, Achalpur. The Additional Sessions Judge while allowing the revision application and setting aside the order passed by the Magistrate observed - "After completion of the age of five years the father may claim custody of the same, but till the time of that age, the mother is entitled to the custody of the children and refusing the custody of the same or keeping the children with him is denying right of mother and hence it is a wrongful Act". He also observed, -"In particular circumstances of this case, considering the very small age of the children keeping away from the approach of the mother, who is entitled to their custody, would amount to wrongful confinement, therefore, she is entitled to the search warrant as prayed for under section 97 of the Criminal Procedure Code."

.8. That is how, the matter has come to this court. This cou