IMPORTANT POINTS
1. In the writ of habeas corpus for the detention of child the law is concerned not so much with the illegality of the detention as with the welfare of the child.
2. The question of custody of minor children is to be resolved in the context of all the relevant circumstances having a bearing on the minors welfare-including their ordinary comfort, contentment, health and upbringing.

JUDGMENT

P.D. Desai, C.J.-Yesterday we passed an order all owing the petition but the judgment could not be delivered for want of time. We proceed to do so now.

The Factual Matrix:

2. The petitioner is the wife of the second respondent (hereinafter referred to as "the respondent"). The parties were married in the month of February, 1980. After the marriage, the respondent has been living with the petitioner in a house constructed by her parents. Two sons (twins) were born out of the wedlock in the month of May, 1981. The petitioner alleges that the respondent, who is a habitual drunkard, has been maltreating her since 1982. Frequent quarrels and cruel beatings have almost become a daily routine.

3. According to the petitioner, the respondent returned home at about 9 P.M. on July 12, 1986. He was under the influence of liquor. He asked for the custody of the children since he wanted to go away with them. When the petitioner refused to, oblige, he tried to forcibly snatch away the children. The petitioner thereupon raised au alarm and the respondent went away. On July 13, 1986 at about 9.30 A.M. the respondent once again tried to take away the children along with the belongings. The petitioner alleges that she thereupon locked the house. The respondent reported the matter to the Police who directed her to unlock the premises. The petitioner was also summoned to the Police Chowki the next day, that is, on July 14, 1986. According to the petitioner, on July 15, 1986 the children were ultimately taken away by the respondent.

4. The petitioner states that both the children are of tender age (5 years) and that it is in their interest and in their welfare that they continue to remain in her custody especially because the respondent is a habitual drunkard and a highly irresponsible person.

5. The respondent has filed a return refuting the allegations made against him and resisting the petition. It is not disputed that since after the marriage he is residing with the petitioner in the house of her parents. His version is that he was humiliated by the parents of the petitioner on a number of occasions. On July 11, 1986, he was asked to leave the house. He therefore, decided to leave the house with his wife and children. The petitioner, however, refused to go with him and he was not even allowed to go into the house to collect his belongings. He thereupon went to the Police Chowki and reported the matter to the Police. On July 14, 1986, he took the children along with him to the house of one of his colleagues who resides in the BBMB quarters. According to the respondent, he has applied for the allotment of Government accommodation which was expected to be allotted very soon. Besides, he has also started constructing a house on the land belonging to the parents of the petitioner which he intends to occupy no sooner it is completed. The allegations that he is a drunkard and that be is unable to take care of the children have been stoutly denied.

6. The undisputed facts which emerge on an analysis of the rival cases are as follows:

The relations between the parties have been strained since 1982. The two minor children (twins) are both just 5 years old. They were taken away by the respondent in the middle of this month (July 14 or 15, 1980) from the house of the parents of the petitioner where both of them used to reside since after their marriage. The respondent and the children are now living in the house of a friend since be does not have any independent accommodation of his own and they may have to continues to stay there till he procures suitable accommodation.

The learned counsel for the respondent has stated that he is employed as a Laboratory attendant and that he is required to attend duty from 9 A.M. to 5 P.M.

The question for decision:

7. The question which arises against the aforesaid background is whether in the exercise of its writ jurisdiction the Court should order that the custody of the minor children be restored to the peti