Heard Mr.Saiyed, learned advocate for petitioner and Ms.Raval, learned APP.
Though, ordinarily, court may not consider the child to be in unlawful confinement when the child is with his father and under such circumstances resort to provisions under Section 97 may not be allowed or encouraged, more so when it is not clear from the record as to whether the wife left the house of the husband or she was driven out and when the child is 8 years old.
However, in view of the allegation that according to the petitioner's information, child is not even with the father and when the police visited residence of the respondent no.2, the respondent no.2 was not found at his residence and the respondent no.2 or the child could not be brought to the Court, it is necessary to ascertain as to whether the child is with the father or not. Thus, let Notice be issued returnable on 24th January 2013.
(K.M.THAKER, J.) Jani Page 2 of 2