The judgment establishes the legal principles surrounding child custody disputes, the rights of the lawful guardian, and the circumstances under which a search warrant can be issued under S.97 of the Code of Criminal Procedure.

1. The first petitioner is the son of the second petitioner. The first respondent is the divorced wife of the 1st petitioner. The child, Mohammed Ismail aged 4 years was born to the 1st respondent before she was divorced by the 1st petitioner. The child continued to live with the 1st respondent. In M.C. 44 of 1974 of the Chief Judicial Magistrate, Manjeri, maintenance at the rate of Rs.15/- per mensem was awarded to the child. On the 16th of June, 1977, the first respondent filed an application before the Chief Judicial Magistrate, Manjeri stating that on 13-6-77 while she was living in house No. 166 of Ward No. III of the Cherukavu Panchayat along with her father and son Mohammed Ismail, the petitioners herein got into the house and forcibly took away the child. The complaint of the Ist respondent to the police was of no avail. She went to the house of the 2nd petitioner and sought return of the child. Her request was turned down and she was subjected to intimidation. According to her, her son is being kept in unlawful custody in a locked room of the house and the purpose is to evade and nullify the order for maintenance. Being a child under seven years, she is entitled to have his custody. The Chief Judicial Magistrate took the sworn statement of the 1st respondent. From the petition and the sworn statement, the court gathered that the child is being kept in unlawful custody. As requested by the 1st respondent, a search warrant was issued for the recovery of the child. Against the above order, the present petitioners filed a revision petition before the Court of Session, Manjeri. They contended that for the past one year, the child was living with the 1st petitioner. The first respondent has remarried and is residing with her new husband. After her re-marriage, the 1st respondent is not entitled to the custody of the child. Even assuming that the mother is entitled to the custody of the child, the father as the legal guardian committed no offence by keeping the child with him and, therefore, there was no occasion for the issue of a search warrant for recovery of the child from the house of the petitioners.

2. The Sessions Judge held that the order of the Chief Judicial Magistrate issuing search warrant was neither improper nor irregular and that the remedy of the revision petitioners was to approach the Chief Judicial Magistrate, represent their case and get a considered order. The petitioners challenge the correctness of the above order of the Sessions Judge;

3. The search warrant in this case was issued under S 97 of the Code of Criminal Procedure (new Code) which reads:

"Search for persons wrongfully confined. If any District Magistrate, Sub-Divisonal Magistrate or Magistrate of the first class has reason to believe that any person ii 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 to 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."

The section is practically a reproduction of S.100 of the Code of Criminal Procedure, 1898 (old Code). The language of the section makes it clear that before a search warrant is issued, the Magistrate should have reason to believe that the alleged confinement amounts to an offence.

4. It will be advantageous to refer to some of the decisions wherein the scope and application of S.100 of the old Code and the rival claims of the parents to the custody of their minor child have been considered.

5. In Aboobaker v. Staff of Kerala (1967 KLT. 563) a father along with some others were convicted for offences punishable under S.363, 448 and 451 read with S 34 IPC. for kidnapping a child aged 21/2 years who was in the custody of his mother. The parties were Muslims. The question arose as to whether th