ORDER(ORAL)

12.02.2024

1) The petitioner has challenged order dated 20.06.2022 passed by Judicial Magistrate 1st Class, Sumbal, whereby, in an application filed by respondent against the petitioner under Section 97 of the Cr. P. C, search-cum-production warrant has been issued by the learned Magistrate in respect of minor son of the parties from the custody of the petitioner.

2) The facts leading to the filing of the instant petition are that the petitioner had entered into a wedlock with respondent in the year 2015 and out of the said wedlock, one male child, who was about five years old at the time of filing of this petition, was born. It appears that the matrimonial relationship between the parties got strained, which resulted in filing of petition by respondent/wife against the petitioner/husband under the provisions of Protection of Women from Domestic Violence Act, a suit for restitution of conjugal rights by respondent against the petitioner and a criminal complaint by petitioner against the father and other relatives of the respondent.

3) The respondent/wife filed an application under Section 97 of the Cr. P. C before the learned Judicial Magistrate 1st Class, Sumbal, seeking production of minor son who was in custody of his father, the petitioner herein. The learned Magistrate, on the basis of aforesaid application, passed the impugned order directing SHO, P/S Noorbagh, Srinagar, to execute the search warrant and produce the minor son of the parties from the custody of his father i.e. the petitioner herein. It is this order which is under challenge by way of present petition.

4) The petitioner has challenged the impugned order, primarily, on the ground that he being father of the minor child is entitled to his custody and his custody cannot be termed as illegal or amounting to an offence. It has been further submitted that the minor son of the parties is regularly attending his school and that the petitioner is taking good care of his welfare but the learned Magistrate has, on the basis of concocted and false allegations made by respondent in her application, passed the impugned order without application of mind. It has been further submitted that the petitioner had approached the learned Magistrate by way of an application for recalling of the impugned order but the same was not considered.

5) The respondent/wife has contested the petition by filing a reply to the same. In her reply, the respondent has stated that the petitioner has always treated her with disdain and has harassed her. It has been further submitted that the petitioner has refused and neglected to maintain the respondent and the minor child, as a result of which she was forced to file an application under the provisions of Protection of Women from Domestic Violence Act before the learned Magistrate. It has also been submitted that the respondent is interested in welfare of the minor child and that the petitioner is not taking good care of the minor child, who has been virtually confined by him after taking away his custody from the respondent. It has been further contended that keeping in view the age of the minor child, the respondent who happens to be his mother, is best suited to take care of his welfare.

6) I have heard learned counsel for the parties and perused record of the case.

7) The impugned order, as already stated, has been passed by the learned Magistrate by taking aid of the provisions contained in Section 97 of the Cr. P. C. In order to test the legality of the impugned order, it is necessary to have a look at the provisions contained in Section 97 of the Cr. P. C, which reads as under:

97. Search for persons wrongfully confined: If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is 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 so conf