CRM(M) No.161 of 2025 p. 1 Regular List S.No.3 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) No.161/2025 DANISH IQBAL SOFI ... Petitioner(s) Through: -Mr.Aaqib Sofi and Mr.Bhat Shafi, Advocates. Vs. SHAGUFTA REHMAN …Respondent(s) Through: -Mr. Mudasur Bin Hassan, Advocate CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER Dt:04.07.2025 1) The petitioner has challenged order dated 23.03.2025 passed by learned Chief Judicial Magistrate, Shopian, whereby, in an application filed by the respondent against the petitioner under Section 100 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) search-cum-production warrant has been issued by learned Magistrate in respect of minor ward of the parties from the custody of the petitioner. 2) The facts leading to the filing of the instant petition are that the petitioner after the death of his first wife has entered into wedlock with the respondent in the year 2019. Out of this wedlock one son was born, who is currently 4 years and 8 months old. It appears that the matrimonial relationship between the parties got strained. The CRM(M) No.161 of 2025 p. 2 respondent left company of the petitioner in November, 2023 and the custody of the minor child was retained by the petitioner. It also appears that the petitioner served notice of divorce upon the respondent, who in turn filed application under Section 100 of BNSS before the learned trial Magistrate. She also filed a petition under the provisions of Protection of Women from Domestic Violence Act against the petitioner. 3) The respondent/wife filed an application under Section 100 BNSS before the learned trial Magistrate, alleging therein that the petitioner has forcibly snatched the minor ward from her lawful guardianship and has retained his custody by wrongful confinement. Learned Magistrate on the basis of the allegations made in the application filed by respondent while passing the impugned order dated 22.03.2025, directed SHO Police Station, Shopian to search the premises of the petitioner and to produce the minor ward before the Court. 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 amounting to an offence. 5) I have heard learned counsel for the parties and perused record of the case. CRM(M) No.161 of 2025 p. 3 6) The impugned order has been passed by learned trial Magistrate by taking aid of the provisions contained in Section 100 BNSS, which reads as under: 100. 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 confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper. 7) A perusal of the aforesaid provision reveals that a Magistrate of the first class is vested with power to issue a search warrant in respect of a person who is confined under such circumstances that his/her confinement amounts to an offence. After the production of confined person before the Magistrate, an order, as is deemed proper by the Magistrate in the circumstances, has to be passed. Thus, two things are essential before a Magistrate can issue a search warrant under Section 100 BNSS, one that a person should be confined and second that the confinement of such person should amount to an offence. 8) Adverting to the facts of the instant case, the respondent in her application before the learned Magistrate has alleged that minor son is in custody of the petitioner/father. It has been alleged that confinement of the minor son by the petitioner/father amounts to an offence. In the impugned order, the learned Magistrate has observed that confinement of the ward by the petitioner amounts to an offence punishable under law. CRM(M) No.161 of 2025 p. 4 9) I am afraid the satisfaction derived by the learned Magistrate from the apprehensions made by the respondent herein in her application is grossly erroneous, inasmuch as, custody of a minor child with his father can in no circumstances be termed as illegal confinement amounting to an offence, as the father happens to be the natural guardian of a minor child. Reference in this regard can be made to ratio laid down in the case of Ramesh vs. Laxmi Bai, (1998) 9 SCC 266. 10) In view of the above legal position, the custody of a minor child with his father cannot be termed as illegal confinement. Therefore, it was not open to the learned Magistrate to pass direction for production of the minor child. The said order is, therefore, not sustainable in law. 11) For the foregoing reasons the petition is allowed and the impugned order passed by the learned trial Magistrate is set aside. The parties are, however, at liberty to approach the competent Court under Guardians and Wards Act for appropriate orders regarding the permanent custody of the minor child. (SANJAY DHAR) JUDGE SRINAGAR 04.07.2025 Sarveeda Nissar Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Sarveeda Nissar I attest to the accuracy and authenticity of this document every page at bottom left side 08.07.2025 12:43