Shamsul Huda, J.
1. The facts of the case are shortly these. On the 5th of March 1919 a complaint was lodged on behalf of one Bibau Bibi also known as Gulabo Bibi (who to avoid confusion would hereafter be referred to by her last mentioned name) to the effect that Bibba Bibi, the widow of her deceased son Lala Kapur-chand, had adopted a boy Basant Roy aged about 5 years in the beginning of February last, that the accused, who as the natural father of the boy had given him in adoption by a registered deed, came to live in the house of the complainant with his wife and subsequently removed the child from her house without her consent and did not bring him back. As soon as the complaint was Sled, the accused produced the boy in Court and on the 21st of March filed a written statement in which he admitted having entered into a contract for giving his son in adoption, but denied that any actual ceremony of adoption had taken place. He also alleged misrepresentation and various other grounds as invalidating the contract. The complainant then filed a written statement traversing the statements made by the accused and also produced the original contract. The case was then adjourned to 7th of April and on that date the Magistrate passed the following order:
Adjourned to 22nd far defendant to move the High Court, If in the meantime no steps are taken, I shall order the boy to be made over to complainant on 22nd.
2. The present Rule obtained by the accused relates to this last order.
3. It is argued that there is no provision of the law upon which this order can be supported. In reply the learned Counsel for the complainant has relied on Section 100 of the Criminal Procedure Code. In the present case although a warrant for production of the boy was ordered, no search warrant was issued nor was the boy brought before the Court in execution of such a warrant. No evidence has yet been recorded. Upon the materials in the record it is not clear that the confinement, if any, amounted to an offence Under these circumstances it appears to be very doubtful if Section 100, Criminal Procedure Code applied to this case. Be that as it may, it seams to me that there is no danger to the health or safety of the child in his being allowed to live with his natural parents and this must always be the paramount consideration in matters of this kind. According to the complainants' own case it does not appear that the boy has ever lived with his adoptive mother or with Gulabo Bibi apart from his natural parents, and it is likely that he will be at least equally happy with them.
4. I, therefore, think that under all the circumstances of this case the order of the Magistrate, dated the 7th April 1919, which in effect is an order directing the child to be made over to the complainant but temporarily kept in abeyance, is not a proper order and 1 accordingly set it aside.
5. As the evidence in the case has not been gone into, I do not think it right to quash the proceedings but at the same time I may express the hope that the parties will see the wisdom of settling their differences amicably or of seeking their remedy in the Civil Court,
6. I agree.