ORDER

This petition under Section 482 of Cr.P.C. has been filed assailing order dated 30.07.2021 passed by First Additional Sessions Judge, Waraseoni, District Balaghat in Criminal Revision No. 35/2021 (Ganesh Jaitwar Vs. Smt.

Jyoti) whereby order dated 23.06.2021 passed by learned JMFC under Section 97 of Cr.P.C. in unregistered criminal case (Juyoti Vs. Ganesh Jaitwar) has been affirmed.

On a perusal of the order dated 23.06.2021 passed by learned JMFC, Waraseoni District Balaghat, it is revealed that wife had moved an application under Section 97 of Cr.P.C. before learned JMFC alleging that her son Devis and daughter Anushri have been taken away from her by non-applicant/husband Ganesh Jaitwar at the pretext of spending half an hour with them. Therefore, he has not handed over custody of minor children Anushri and Devis aged 7 years and 3 years respectively to her. Therefore, it was prayed that non applicant/husband be directed to produce both the children before the Court by issuing search warrants. Learned JMFC directed for issuance of search warrant and that order was challenged by filing revision before the Court of Session by the husband Ganesh Jaitwar but same stand dismissed on the ground that order passed is interlocutory in nature. Therefore, no interference can be made in revision.

On a perusal of the controversy between the parties and upon hearing learned counsel for the parties, it is apparent that there is a dispute between husband and wife, who are living separately, over the custody of minor children. In a case, where disputant husband and wife are at loggerhead for the custody of the minor children, the best way is either to resort the provision of Section 12 of the Guardians and Wards Act, 1890 and if parties are Hindu then they can resort to Section 6 of the Hindu Minority and Guardianship Act 1956 also. In such type cases, Courts must refrain from issuing warrant under Section 97 of the Cr.P.C. as mother and father both being natural Guardian have a right to the custody of minor children. However in such matters, the paramount interest of the child/children must be only consideration for the Court while dealing with such matters.

Therefore, this petition under Section 482 of Cr.P.C. is allowed and the orders passed by the Courts below are set aside. Parties are directed to take recourse of the law available under Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act 1956.

This petition is disposed of accordingly.

(DINESH KUMAR PALIWAL) JUDGE L.R.