Ordinarily custody of any minor of tender age is handed over to the mother by invoking the jurisdiction under section 491, Cr.P.C. However, in this case the facts are different. Parties got separated on 1-9-1999 after the petitioner was divorced by the respondent and thereafter, even according to the petitioner there was some mutual agreement or arrangement in between the parties, as a result of which the minor was handed over to the respondent. It is true that any arrangement or agreement in-between the spouses or the parties does not in any manner bind the minor and his custody is to be decided by determining his or her welfare. However, in order to determine the welfare of the children collection of evidence is necessary and same can better be done by the Guardian Court. Even otherwise, section 491, Cr.P.C. Is not meant to pre-empt the jurisdiction of Guardian Court. If in case it is noticed that child has been forcibly taken away or retained by the father or any one else and same may be hazardous to the minor then the mother who has a first right of custody is handed over the custody: In the instant case the facts being different that child is with the father since 1-9-1999, I do not think it would be appropriate to invoke the jurisdiction under section 491, Cr.P.C. Because obviously the case is not of emergency. The petitioner may move the Guardian Court who will decide the same by keeping in view the welfare of the minor. For interim relief as well, section 12 of Guardian and Wards Act can be pressed into service.
2. Disposed of with above observations.