P. A. CHOUDARY, J.

( 1 ) THE petitioner Chandran of Chingleput District an employee of the Government of Tamil Nadu, married Sundari, the daughter of the first respondent on 11-7-1973 at Secunderabad Sundari of Secunderabad, an Arts graduate aged then about 24 years was working before her marriage as a school teacher at Secunderabad after her marriage, Sundari went to Tamil Nadu and lived with the petitioner in various places of Tamil Nadu and came back to Secunderabad for confinement and died in a nursing home at Secunderabad on 23-10-79 after giving birth to a female child on 17-10-1979 which is the subject-matter of this contentious litigation. The child, after the death of its mother, was not taken by the petitioner to his care or place in Tamil Nadu, Instead it was left at Secunderabad with its grandmother. The mourning grand-mother who is a widow and aged over 50 years took her grand-daughter into her care and custody and since then has been bringing her up in her home at Secunderabad. Now, the petitioner, the father of the child, moves this application under Article 226 of the Constitution for the issuance of a writ in the nature of habeas corpus directed against the childs grandmother, the first respondent, for the production of the child into this Court and for handing over the baby to the custody of the petitioner.

( 2 ) THE petitioners mainstay of his case is his argument based on his paternal right to the custody of the child. He being the father and the natural guardian of the child, the petitioner asserts he has an unlimited right to claim back the custody of the minor from the hands of the maternal grand-mother. He also states that the child would be happier with him than with its maternal grandmother with her moderate financial resources. In view of the fact that one day in the none-too distant future the child has to live with the petitioner-father the petitioner also argues that it would be in the best interest of the welfare of the child for this court to direct today the grand-mother to hand over the baby to the petitioner.

( 3 ) THE first respondent, the grandmother resists this application mainly on the ground that forcing this babe-in-arms out of her six-months old company and custody, would not be in the best interests of the minor child as that would deprive the child of the sense of security and safety which a child needs more than most of any other thing. She also alleges lack of paternal warmth on the part of the petitioner who almost deserted the child and denies her financial inability. She says that the petitioner himself being liable to be transferred from place to place cannot look after the child. As ha is without female support he has to leave the child with his parents. She alleges that the petitioners application is a preliminary step to get back the child before he remarries. Considering the tender age of the child and its apparently happy company with its grand-mother and taking into account the fathers natural love for his daughter and being conscious that such matters as these are better settled by the consent of the parties than coercion, of law, we suggested to the parties to agree to an amiable course of compromise. But unfortunately the parties failed to arrive at a compromise leaving us with no option except to decide according to our lights this unfortunate case involving _the welfare of an innocent and motherless child.

( 4 ) WE may begin this case on a sad reflective note that this is the kind of human tragedy from which there is no help that drove away the compassionate souls like those of Lord Buddha and Lord Russel from the theological solutions to agnostic answers for solving problems of human misery.

( 5 ) SHOULD we today deliver this motherless child to the petitioner by taking it away from the first respondents custody, is the substance of the debate before us. Has the petitioner as a father got an unlimited right to claim the childs custody without reference to the latte

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