RAJESHBHAI GOVINDBHAI PATANWADIA Vs. ANITABEN RAJESHBHAI PATANWADIA

JUDGEMENT

(1.) HEARD learned advocate Mr. AR lakhia on behalf of petitioner, learned advocate Mr. D. M. Shah appearing for respondent and learned APP Mr. HM Jani appearing for State.

(2.) IN this petition, respondent Anitaben rajeshbhai Palanwadia filed application u/ s 97 of Cr. P. C. obtained search warrant to have custody of minor Anurag aged 4 years and Rahul aged two years from husband. The application is filed on 15/2/2008 before magistrate Court, Baroda. The Magistrate court has registered Criminal application no. 187/2008 and after considering provision of Section 97 and facts which are pointed out by respondents to Magistrate court that husband has deserted the wife and both minor children are with husband. The wife opponent on 14/2/2008 went to house of husband and request for custody of children but that was rejected. Therefore, application is filed before Magistrate. The say of respondent is that both minor children are in custody of husband and against their will both are illegally detained by husband in his house. The Magistrate court has considered application and understand real purpose to file such kind of application to have any search warrant u/s 97 of Cr. P. C. The Magistrate Court has rightly come to conclusion that who is required custody of minor children is to be decided by Civil Court and Magistrate court has no power to examine such issue. The Magistrate Court has also considered that whether mother or father who is entitled for custody of child is to be considered while keeping in mind welfare of such child otherwise individual may having right to have custody of children. Therefore, application is rejected by magistrate Court, Baroda on 19/2/2008 against which Revision application is filed u/s 397 of Cr. P. C. no. 75/2008.

(3.) THE Additional Session Judge, baroda has allowed Revision application setting aside order passed by Magistrate court and warrant u/s 97 has been issued by additional Session Judge. The Additional session Judge has given direction to issue search warrant as proposed by applicant and to proceed further with matter in accordance with law.