SHAMIM AHMED Vs. ASHIYA BEGUM

JUDGEMENT

(1.) Present petition is one under Sec. 561-A of the Criminal Procedure Code, seeking to quash the order dated on 27.01.2016, passed by the learned Munsiff, Judicial Magistrate, Bhaderwah, whereby the learned Magistrate has invoked its powers under Sec. 100 of the Jammu & Kashmir Criminal Procedure Code, Svt. 1989, ordering search of two minor children who are stated to be in the custody of the petitioner herein, who is otherwise their father.

(2.) The basis of the order for issuing search warrants lies in the fact that both the children are minors being two and a half years' and one year old and, therefore, require breast feeding. Reliance was placed upon a judgment of this court in the case reported as Bashir Ahmed Mir & Ors. Vs. Rubeena Akhtar, 2011 SLJ 687 : 2011 (1) JKJ 937 [HC] , wherein this court had held that there was no jurisdictional error in issuing search warrants in a case where custody of a minor was handed over to the mother by invoking powers under Sec. 100 of the Cr. P.C.

(3.) Counsel for the respondent justified the passing of the order impugned on the ground that the only consideration which ought to weigh while exercising powers under Sec. 100 of Cr. P.C., was the welfare of the children and their rightful custody and that no illegality had been committed by the court below. Reliance was placed upon Purshottam Wamanaro Thakur Vs. Warsha, W/o Narendra Thakur, 1991 Law Suit (Bom) 403 , Bashir Ahmad Mir & Ors. Vs. Rubeena Akhter, 2011 (1) JKJ 937 [HC] : 2011 SLJ 687 , SK Razak Vs. Riyasathbi, 1974 Law Suit(Bom) 69 and Savitben Mahendrabhai Parmar Vs. State of Gujarat, 2013 Cri.L.J. 4472 , to buttress the proposition that in case where the children were of tender age, exigencies of situation demanded restoration of their custody to the mother at the earliest as not doing so would be against the welfare of the minors.