1. Heard Mr. A. M. Dar, learned counsel for the husband-petitioner as well as Ms. Arifa Dar, learned counsel representing the wife-respondent.

2. By means of this Criminal Revision Petition, the petitioner has challenged the orders dated 29.10.2010 and 3.11.2010, passed by the learned Sub Registrar (Judicial Magistrate 1st Class), Srinagar (hereinafter referred to as the 'learned Magistrate') in file No. 55-W while entertaining the application under Section 100 Cr. P. C preferred by the respondent, whereby a search warrant was issued against the petitioner for search and production of the male child, namely, Shaban Ahmed Mir, aged about 3 (three) years (although as per School certificate dated 4.11.2010, as annexed to the revision petition, the date of birth of the child was shown as 6.8.2006) and subsequently, the custody of the child was handed over to the mother-respondent in the open Court giving liberty to the parties to approach the competent authority for guardianship of the child respectively.

3. As agreed to by the learned counsel for the parties and also keeping the issue raised herein in mind, this Court proposes to dispose of this revision petition at the admission stage.

4. The core issue involved in this revision petition is as to whether the mother-respondent is entitled to get the custody of the child from her husband-pe­titioner by invoking the provisions of Section 100 Cr. P. C.

5. For proper resolution of the lis, it would be necessary to portray the factual matrix of the matter in brief.

6. The petitioner married the respondent in the year 2005 in accordance with the Muslim Personal Law and out of their wedlock a male child was born on 6.8.2006, as per School record. However, the marriage was hit by the turbulence and, eventually, culminated in a formal divorce between the parties, and in that regard, a deed of divorce was executed on 21.9.2009. One of the conditions stipu­lated in the divorce deed, was that the boy child was to be handed over to the petitioner who should maintain him properly.

7. After dissolution of marriage in the year 2009, the son was with the father. There is allegation from the respondent's side that she was not allowed to take the custody of the minor child. Apprehending danger to her son at the hands of the petitioner, she moved an application under Section 100 Cr. P. C, before the learned Magistrate claiming release of the child from the alleged illegal detention of the husband.

8. Admittedly, the husband/petitioner has married again and the child has been in the father's custody, where he is having a step mother.

9. The learned Magistrate, while entertaining the application under Section 100 Cr. P. C, after hearing the learned counsel for the parties and on being satisfied, by his order dated 29.10.2010, issued a search warrant against the petitioner for search and production of the child with a direction to the police to produce the child before the Court on or before 3.10.2010.

10. On 3.10.2010, the police produced the child before the Court and both the parties were heard through their engaged learned counsel.

11. Having considered the submissions of the learned counsel for the parties, the Court disposed of the application, ordering that the child be handed over to the mother in the open Court, observing further that the parties would be at liberty to approach the competent Court for the guardianship of the child.

12. The legality and correctness of those orders have been assailed in this revision petition, basically on two grounds, (i) the impugned orders, ex-facie, suffer from jurisdictional error, inasmuch as the learned Magistrate was not permitted to entertain the petition under Section 100 Cr. P. C., holding that the child was under illegal and wrongful confinement of the petitioner, who is father and natural guardian of the child and (ii) when the child is with the father in terms of deed of divorce, there cannot be any question of illegal or wrongful confinement of the child und

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