(1) THIS petition under Art. 226 of the Constitution for issuing a writ of habeas corpus for the release of the minor child Smrity, who at present aged about 2 years 4 months from the custody of opposite parties Sri Krishna Kumar Gupta and others. The petition was filed by Sri Ravi Kant Keshri, the father of the minor child. Ravi Kant Keshri at present is aged about 25 years. He was married to Smt. Anita Gupta daughter of opposite party No. 1 Krishna Kumar Gupta. It is said in the petition that late Anita Gupta was a heart patient. This fact was concealed at the time of marriage.

(2) AFTER the marriage, the couple lived happily and the child Baby Smirity was born on 6-2-90. The birth of the child was stated to be by surgical operation which has been controverted and said to be a case of forceps delivery. Unfortunately, Smt. Anita Gupta who had gone to her parents, died on 24/25th of February 1990 at Ambikapur. The minor Baby Smirity continued to live with the maternal grandfather and the maternal grandmother, Mama and others at the Parents house of the deceased Smt. Anita Gupta.

(3) THE present petition for writ of habeas corpus has been filed by the father of the child, claiming the custody of the minor on the ground that the child is being illegally detained by the maternal grandfather and maternal grandmother. It has also been stated that the petitioner No. 1 and his parents are persons of means and are well settled and doing business at Mughalsarai, Varanasi. It has been stated that the petitioner No. 1 being the father is the natural guardian of the child and is entitled to get the custody of the child. It has been also stated that the welfare of the child would be of paramount consideration for the disposal of the petitioner and it is submitted that the petitioner No. 1 is the natural father and his parent, who can look after, care and look to the welfare of the minor child in a better manner.

(4) AT the initial hearing of the habeas corpus petition, the Court was pleased to issued notice to the opposite parties with a direction that the minor child be produced before the Court. On 14-5-1992 the parties appeared before the Court and the minor child who in fact is an infant, was brought before the Court in the laps of the real sister of the deceased Smt. Anita. The Court observed that the child was being loved with all care by the said Km. Varsha Gupta. The child looked to be very happy with the said Km. Varsha Gupta. There was nothing to indicate that there was any strained relation between the parties. The Court was pleased to direct the learned counsel for the parties looking into the facts and circumstances of the case to settle up the matter between themselves keeping in view that the girl Varsha was also unmarried. If the parties negotiate the entire controversy may be set at rest. On 15-5-92 again the parties appeared before the Court and it was stated that the parties have negotiated in the matter and some final decision was to be taken only after consultation and consent of Km. Varsha. It was requested that some date after six weeks may be fixed so that the parties may arrive to some amicable settlement.

(5) THE case was next listed on 14-7-92 but the case could not be taken up. On 15/07/1992, the case was taken up but the infant Baby Smirity was not brought before the Court in spite of a direction to that effect. The Court, thus, directed that the case may be listed on 3-8-92 for final decision after hearing of the parties. The case is listed before me today in Chambers.

(6) I have heard the learned counsel for the parties at length. Unfortunately, the parties could not arrive at any amicable settlement and it was stated that the talk about the amicable settlement could not fructify and requested to court to decide the case on merits, after hearing the parties.

(7) I have heard Sri Parikh, the learned counsel for the petitioner at length. The submission of the learned counsel for the petitioner is that the father petitioner No. 1 is the natural guardian, is a person of means and has all legal rights to have the custody of the child. He also submitted that it is in the interest and welfare of the child that she be given to petitioners custody. It was also argued that the child cannot be properly looked after and brought up at the City of Ambikapur, Madhya Pradesh which is a small town where the facility for proper upbringing and education are not available. It was also submitted that if an argument is advanced that Hindu Minority and Guardianship Act is an alternative remedy be availed that is of no consequences. In view of the decision of the Supreme Court and of our Court which says that alternative remedy of Hindu Minority and Guardianship Act shall be no bar in entertaining writ petition under Art. 226 for issuing writ of habeas corpus.

(8) I have heard the learned counsel for the respondents at length. Sri V. B. Uppadhyaya, Senior Advocate, submitted that it is not disputed that the status of the respondents is sound and they are financially quite well of. He has also pointed out that the deceased Smt. Anita Gupta when was aged about 9 years had some heart complaint and the surgical operation of the deceased had taken place at Belgium. This fact alone shows that the family of the respondents are persons of sufficient means and it cannot be said that they would lag behind in proper upbringing and care of the infant if the child is permitted to remain with them. The learned counsel for the respondents do not dispute that the remedy of Hindu Minority and Guardianship Act would not be a bar in entertaining the petition of habeas corpus.

(9) SRI Parikh cited 1982 All Cri Rulings 46 (Sic) (Vinayak Goel v. Prem Prakash Gupta). The authority cited lays the law that habeas corpus remedy is available to petitioner and the writ petition cannot be thrown out on the ground of alternative remedy, while adjudicating petition for habeas corpus about the custody of the child, the paramount consideration is that of welfare of the child. The case cited by the learned counsel was to lay an emphasis that there was dispute about the custody of a minor child, between the mother of the minor child and grand parents of the child and the custody of the child was given to the mother. It is urged that the surviving natural guardian is the person to whom the custody is to be given which is based on legal right.

(10) ANOTHER Full Bench case cited by the learned counsel for the petitioner is 1985 Alld. Weekly Cases 470 (Iqbal Ahmad v. S. A. Khan). This judgment is also for the proposition about the maintainability of the writ petition for issuing writ of habeas corpus the remedy under Guardian and Wards Act was not always adequate and efficacious remedy. It is not necessary to further consider the submission about the maintainability of the petition under Art. 226 as learned counsel for the respondents do not dispute the proposition of law and it is also fortified by the case law cited by the learned counsel for the petitioner.

(11) SRI V. B. Uppadhyaya, Senior Advocate, cited AIR 1987 SC 3 [LQ/SC/1986/436] (M/s. Elazabeth Dev Shaw v. Arban N. Den Shaw). The learned counsel submitted that the petition for habeas corpus in such circumstances is not to be decided on considerations of legal rights of the parties alone but on sole paramount consideration of welfare of the child and who would better serve the interest and welfare of the minor.

(12) THE learned counsel further cited 1988 (14) Allahabad Law Reports 405 at page 407 (Harish Chand Shukla v. Persons and property of Km. Madhu Shaila). This single Judge decision was cited to fortify the submissions that the Court while considering the question of giving the custody of the minor has to consider the status and financial position of the parties. It has to see the most important question which is the welfare of the minor and where the minor may be properly looked after and properly maintained and brought up. From the allegations in the writ petition, counter affidavit and the rejoinder affidavits, the question about the status of the parties, there is no doubt that both the parties are capable of maintaining the child. It cannot be over looked that the respondents are perhaps persons of better financial position and status as they could manage to take their daughter for treatment to Belgium, which is not an ordinary affair for a person of an ordinary means. However, this would not be of much importance for the present case, as the status of both the parties are sound.

(13) THE learned counsel for the respondents cited, AIR 1982 SC 792 [LQ/SC/1981/207] (Dr. Mrs. Veena Kapur v. Varindra Nath Jha). The Supreme Court case cited above, is for the proportion that the question of welfare of the child is such a delicate question which cannot be adjudicated on basis of affidavits in a proceedings under Art. 226. The Supreme Court in the said case was pleased to issue a direction to the District Judge for recording the evidence of the parties for arriving at a decision about the welfare of the minor after taking evidence of the parties. It was directed that the learned District Judge would examine the evidence of the parties and see the paramount interest and welfare of the minor and record a finding as to which of the party would be the best person to have custody of the child. The Allahabad single Judge case 1989 was cited for the proposition that evidence would be required for arriving at a decision about the welfare of the child which cannot be done properly in a petition under Art. 226 and the proper forum is that circumstances would be Civil Courts.

(14) AFTER hearing the learned counsel for the parties and seeing the record and looking to the child, who is of a very tender age, I consider that the maternal grand father and maternal grand mother who had been looking after the welfare of the child since 18th day of her birth are the proper person to retain the custody of the child Baby Smrity. Ambikapur, I am told, is a good city of Madhya Pradesh where all sort of Educational, Medical facilities are available and the opposite parties Nos. 1 and 2 had been taking all care for the up-bringing of the child. It cannot be said that the opposite parties Nos. 1 and 2 are in any way illegally detaining the minor child with them and are not permitting the child to go and stay with the petitioner No. 1. No doubt, petitioner No. 1 is the father and natural guardian of the minor infant, that alone is not sufficient for the person to grant custody to him. The present petition for issuing writ of habeas corpus cannot be allowed in these circumstances. The submissions of the learned counsel for the petitioner for detaining the child is said to be using the child as a bait by the opposite parties Nos. 1 and 2 for illegally squeezing money from the petitioner No. 1. This allegation is denied in the counter affidavit and there is no reason to believe that the maternal grand father and maternal grand mother would keep a minor of 2 years 3 months as a bait for squeezing money from the petitioner who was none-else, but own son-in-law. It appears that the petitioner No. 1 was not properly advised to file the present writ petition for issuing writ of habeas corpus. However, it is made clear that the petitioner No. 1 may take such action according to law e. g. Hindu Minority and Guardianship Act, if so advised only after some years, when the child attains an age fit to exercise discretion.

(15) HOWEVER, before concluding, it has been submitted by the learned counsel for the petitioner that petitioner No. 1 who is father of the minor has every right to visit and meet the child. The argument has sufficient force. The learned counsel for the respondents states that the respondents have no objection in permitting the petitioner No. 1 to meet the petitioner No. 2 minor child. Respondent No. 1 stated before me that petitioner may come and stay at his house for some days also.

(16) THE learned counsel for the respondents states that his client has consented to permit the petitioner No. 1 to visit his place every month and meet with the child for atleast 2 to 3 hours at the residence of the opposite parties Nos. 1 and 2.

(17) THE petition for habeas corpus fails and is dismissed. No order as to costs. Petition dismissed.