The welfare of the minor is the paramount consideration in matters concerning the custody of minor children.

Shib Sadhan Sadhu, J.

1. The instant Revisional Application is filed by the petitioner challenging the judgment passed by the Learned Additional District & Sessions Judge, 17th Court, Alipore, South 24-Parganas on 30.01.2014 in Criminal Motion No.348 of 2012 dismissing the Revisional Application preferred by the present petitioner against the judgment dated 10.01.2012 passed by the Learned Chief Judicial Magistrate, Alipore in case No. C-3325 of 2003.

2. The aforesaid case number being C-3325 of 2003 on the file of the Chief Judicial Magistrate Court arose on the complaint filed by the complainant Mahua Majumdar (O.P. No.2 herein) alleging forceful taking away of her suckling baby aged about 18 months by her husband (the present petitioner herein) and driving her out from his house. It was further alleged that she was not allowed access to her husband’s house even for seeing her baby. So she was compelled to institute the case alleging wrongful confinement of the baby against the petitioner and also she made a prayer for recovery and custody of the child by issuance of Search Warrant. Accordingly, Search Warrant was issued, the baby was recovered and handed over to the temporary custody of the mother. Thereafter, the present petitioner filed an application for an order directing the complainant wife to hand over the child to him. That application was heard and rejected on contest. Thereafter, the trial of the complaint case proceeded and after trial, the Learned Chief Judicial Magistrate, Alipore acquitted the accused i.e. the present petitioner of the charge under Section 344 of the Indian Penal Code. It was observed by the Learned Chief Judicial Magistrate that since the petitioner is the father and he used to look after and take care of the baby in absence of her mother, he cannot be indicted for any criminal liability because of absence of any mens rea on his part. It was further observed that since the baby was aged about 18 months, the mother was entitled to have the custody of the child as per provisions of Section 6 of Hindu Minority and Guardians Act, 1956 and the baby’s custody in favour of his mother could in no way be disturbed for the sake of welfare of the child and the claim of the accused for returning the baby is not sustainable in law. It was further observed that the accused can have the custody of the child by making trial before the Court of competent jurisdiction under the Guardians and Wards Act.

3. Being aggrieved by such observations the petitioner has filed the revision before the Learned Additional District and Sessions Judge, Alipore contending that the Learned Chief Judicial Magistrate had no jurisdiction to pass an order under Section 97 of the Code of Criminal Procedure and for final custody of the child and that the child was not a suckling baby at the relevant time and the Court should have restored the custody of the child in favour of the present petitioner as he had been acquitted of the charge.

4. The Learned Additional District & Sessions Judge observed that the baby was of so tender age that his mother only can provide proper care and that the petitioner should have given custody of the child to his wife as the child was suckling baby. He further observed that since the child was less than 5 years old, the Trial Court has properly exercised its jurisdiction by issuing Search Warrant and giving custody of the child to his mother. He further concurred with the finding of the Trial Court that the petitioner father could not be held guilty of wrongful confinement of the child being the natural guardian. He, therefore, rejected the contention of the present petitioner for restoration of the custody of the child and dismissed the revisional application.

5. I have heard Mr. Avirup Chatterjee, Learned Counsel for the accused/petitioner and Mr. Imran Ali, Learned Counsel appearing on behalf of the State/Opposite Party. I have also perused all the available materials on record including the imp