The welfare of the minor child is the primary consideration in determining the custody of the child.

1. - This application Under Section 482 Cr. PC has been filed by Chandkhan and his father Karimji against the order of the learned Judicial Magistrate No. 3, Jodhpur, dated 24-9-1984 by which he has directed the issuance of a search warrant for the production of the minor child Insaf before him.

2. The facts giving rise to this application briefly stated are that the petitioner Chandkhan is the husband of the non-petitioner Chandbai, who are both Mohammedan by caste. A son was born out of this wedlock in the year 1980. It is alleged by the wife Smt. Chandbai that on 25-5-1983 her husband Chandkhan turned her out from her house and had retained the child, namely, Insaf. Her case further is that Chandkhan is torturing Insaf and has wrongfully confined him to the house, does not allow him to go out even to the school and although the child is keen to meet his mother, he is being deprived from her custody and is not allowed to meet her. She therefore moved an application Under Section 97 of the Criminal Procedure Code before the learned Judicial Magistrate No. 3, Jodhpur. The learned Magistrate issued notice to the opposite party and after making an enquiry on the basis of the affidavits, came to the conclusion that the manner in which the child Insaf was kept by Chandkhan amounted to his wrongful confinement and, therefore, he directed a search warrant to be issued for his production.

3. Aggrieved of this order, the petitioners Chandkhan and Karimji filed a revision before the learned Sessions Judge, Jodhpur but the same was rejected as not maintainable. They have, therefore, come up this court.

4. I have heard the learned counsel for the parties and have gone through the record.

5. It is urged by the learned counsel for the petitioners that the learned Magistrate had no jurisdiction to issue a search warrant under Section 97 of the Criminal Procedure Code in the circumstances of the case because there was no material before him to show that the confinement at all amounted to an offence in as much as the petitioner Chandkhan is the father of the child and under the Mohammedan law, he is a natural guardian of the child. He further contended that the detention of the child by the father who is the lawful guardian of the child can by no stretch of imagination amount to a wrongful confinement of the child or to any other offence and, therefore the learned Magistrate could not have taken recourse to Section 97 Cr. PC. It was also contended by him that the proper course for the non-petitioner, if she wanted to keep the custody of the child, was to approach the District Court under the Guardian and Wards Act and as a matter of fact, she did file an application under that Act before the learned District Judge, Jodhpur but the same was rejected for want of territorial jurisdiction and thereafter she did not file any application before the Court having jurisdiction and has wrongly taken resort to Section 97 of the Criminal Procedure Code. The learned counsel drew my attention to Mt. Khaliqan v. Emperor AIR 1945 Oudh 170 , Smt. Basanti Bai v. Mohanlal, AIR 1958 Raj. 267 , and K. Sarasu v. Sengodan 1981 Cri LJ (NOC) 113 (Mad) .

6. On the other hand, learned counsel for the non-petitioner urged that there was material before the learned Magistrate to show that the child was being kept in wrongful confinement and was not allowed to go even to his mother, who is entitled to his custody and if in these circumstances, the learned Magistrate directed the assurance of a search warrant, he was within his jurisdiction to do so and this Court need not interfere with the discretion exercised by him. In this connection, he placed reliance upon Barakh Singh v. Lalmuni Kuer 1977 Cri LJ 723 and Pareekutty v. Avissakutty 1978 KLT 83 . He also cited some other authorities but according to me, they are beside the point and need not be referred to here.

7. I have given my careful consideration to the rival contentions. It is true that ordinarily in ma