The welfare of the child is the paramount consideration in determining custody disputes.

K. P. MOHAPATRA, J.

( 1 ) THIS revision is directed against the order dt. 19-7-1989 passed by the Sub-Divisional Magistrate, Sambalpur, to recall the search warrant under S. 97 of the Criminal P. C. (2 of 1974 ). ('code' for short) issued by him earlier.

( 2 ) FACTS may be stated in brief. Indisputably the petitioner and the opposite party are husband and wife respectively. They lived together and a son was born to them. His age would now be about one and half years. According to the petitioner, the opposite party had some mental illness and was under treatment as an indoor patient of the V. S. S. Medical College and Hospital, Burla in the middle of the year 1988. Since then she was being administered medicines. On the advice of the doctors the child was separated from the opposite party. Later, the father of the opposite party took her away to his own village leaving the child with the petitioner. Since then she is not returning to the matrimonial home despite several attempts. According to the opposite party she was ill treated not only by the petitioner, but also by several family members. She was separated from the baby and was driven out at night from the matrimonial home. At that time the baby was forcibly snatched away from her and since then he has been kept by the petitioner. It is necessary that the child should be restored to her for his well being. So, at her instance a petition under S. 97 of the Code having been filed, warrant was issued for restoration of the child to her.

( 3 ) AT the first instance, the Sub-Divisional Magistrate on being convinced that a case under S. 97 of the Code had been made out issued a search warrant to be executed by the police. On learning about the issuance of the search warrant, the petitioner appeared and filed an objection. The matter was heard in the presence of the learned counsel of both parties and ultimately the impugned order was passed refusing to recall the warrant.

( 4 ) ON the revision being filed, both the parties were noticed to appear so as to make an effort for reconciliation. They appeared and despite advice being tendered in the presence of their counsel a reconciliation could not be effected.

( 5 ) MR. B. P. Ray, learned counsel appearing for the petitioner, urged that the child was not forcibly snatched away but, on the other hand, was left behind by the opposite party. Not only the petitioner, but also the members of his family are nursing the child very properly and as admittedly the petitioner is the father of the child, it cannot be said that the child has been confined and such confinement amounts to an offence so as to enable the Sub-Divisionai Magistrate to issue the search warrant under S. 97 of the Code. Mr. S. K. Mund, on the other hand, urged that according to S. 6 of the Hindu Minority and Guardianship Act (hereinafter referred to as the 'act'), the mother is the guardian of a minor child who has not completed the age of five years and so shall have the custody of the minor. In such circumstances, the petitioner cannot claim as the legal guardian and is not entitled to remain in custody of the child. So his act of confinement of the child amounts to an offence giving cause of action to the petitioner under S. 97 of the Code. In support of his contention, Mr. Mund placed reliance on AIR 1987 SC 3, Mrs. Elizabath Dinshaw v. Arvand M. Dinshaw the facts of which were quite different, and the well known maxim of the welfare of a minor child being the sole and predominant criterion whenever a question arises before the court pertaining to the custody of the minor was pronounced.

( 6 ) ACCORDING to the provisions of S. 97 of the Code, a search warrant cannot be issued automatically without application of judicial mind to the allegations made in the application. The expression 'reason to believe' implies a belief in judicial mind arrived at after consideration of the available materials without ignoring as far as possible to other side of the controversy