Under what circumstances can the power under Sec.97 and/or Sec.98 of the Cr.RC. be invoked by a Magistrate in a dispute regarding custody of minor children? This is the crucial question that arises for consideration in this revision petition directed against an order under which the petitioner’s application praying for action under Sec.97 or 98 of the Cr.P.C. was dismissed by the court below. The young counsel Mr. Thomas M. Jacob and Mr. Vinod Madhavan have researched the question in detail to assist this Court.

2. To the skeletal facts first. The petitioner is a 23 years old mother of two minor female children aged 4 years and 1½ years respectively. Her husband was employed abroad. She was residing in her matrimonial home along with the relatives of her husband including the respondent herein-her mother-in-law. She would allege that there was ill-treatment at the matrimonial home and she hence decided to leave the matrimonial home and take up employment at Nasik in Maharashtra. With the help of a friend of her husband one Ismail, she allegedly left her native place leaving the 4 year old elder child at her matrimonial home and the 1½ year old younger child at her parental home along with her parents.

3. The petitioner, who had requested her father to bring her from her matrimonial home, had reached her house. But thereafter she made herself scarce on 21-3-2006. She left the native place without leaving any word to any one admittedly along with the said Ismail.

4. The worried father of the petitioner made frantic enquiries to trace her. She was not available any where. This obliged him to lodge a complaint before the police and the police registered a crime under the caption “woman missing”. Even in the First Information Statement it is stated clearly that the 4 year old child was with the respondent herein and that the 1½ year old child was left at her parental home. That child was taken back to the matrimonial home by the relatives of the husband who had come to the house of the petitioner on coming to know of the fact that she was missing. The respondent herein is the grandmother. She has another daughter­-in-law by name ‘Sulekha’. The husband of the petitioner had subsequently come down from his place of employment abroad and is now available in the matrimonial home, it is submitted and not disputed. I say so because it is the case of the respondent that even though she alone is shown as the respondent, the children are being kept at the matrimonial home with the respondent, the said Sulekha and the husband of the petitioner-all available to look after the children.

5. It is not disputed that the petitioner has now been divorced by her husband and the husband has now remarried. Nothing was heard of the petitioner till 3-4-2006. She returned to her native place on that day. She appeared before the police. The police recorded her statement. Along with the statement and a report she was taken before the Magistrate. The Magistrate ascertained details from the petitioner. She was set at liberty as she asserted that she was not under confinement by any one.

6. Long after she was left free by the learned Magistrate on 3-4-2006, the petitioner came to court with the present application under Sec.97/98 of the Cr.P.C. on 27-7-2006. The short contention raised by her is that both her children are now under confinement at her matrimonial home and the confinement amounts to an offence. She further alleged that retention of her minor children over whom she has rights of custody in the house of the respondent against her wishes amounts to unlawful detention for unlawful purpose and therefore if not under Sec.97 action is liable to be taken by the learned Magistrate under Sec.98 of the Cr.P.C.

7. The claim was resisted by the respondent. She contended that there was absolutely no confinement. At any rate, there was by no stretch of imagination, any confinement which would amount to an offence. She further contended that continued re