The welfare of the children is the paramount consideration in determining the custody of children.

K.M. NATARAJAN, J.

This writ petition is filed by the mother of the detenus under Article 226 of the Constitution of India, for the issuance of a Writ of Habeas Corpus directing the respondent-husband to produce the minor children, Madhulika aged 9 years and Anirudh aged 6 years, before this Court and set them at liberty by handing them over to the petitioner.

2. The case of the petitioner as seen from the affidavit filed in support of the petition is briefly as follows: The petitioner and her husband, the respondent, were married on 18th January, 1981 at Madras. Out of the lawful wedlock, she has given birth to two children, namely, daughter Madhulika aged 9 years and son Anirudh aged 6 years. She was residing with the respondent and the two children in a flat in Gandhi Nagar, Madras. Some time back the respondent and she had marital problems and their relationship deteriorated and finally she was driven out of the flat by the respondent on the night of October 25, 1991. Ever since then she has been residing with her mother at T. Nagar. Better sense prevailed on the respondent on the next day and after discussion it was agreed that their marriage had come to an end. Further, the petitioner should continue to reside with her mother and come to the flat at Gandhi Nagar daily to see the welfare of the children. Accordingly she used to come daily to the flat at Gandhi Nagar and attend the children and return to her mother's house at T. Nagar. On Saturday (30th November, 1991) the respondent, his brother I. Srinivas. Advocate Mahanti from Delhi, P.M.M. Rao (the brother-in-law of the respondent) and some others barged into the petitioner's mother's house at T. Nagar, abused her and made all kinds of wild and baseless allegations against her. They also threatened the petitioner and her mother with physical violence. Ever since then the respondent denied access of the petitioner to her children. Since the children were not available in the flat at Gandhi Nagar, she made enquiries about them and later on 11-12-1991 she made enquiries at the St. Michael's Academy, and she was shocked to learn that the children had been withdrawn from the school and transfer certificate was obtained by the respondent. Thereupon, she issued a notice through lawyer on 11-12-1991 calling upon the respondent to hand over the children to her and also a telegram directly to the respondent to his office address. It is further stated that since she has no information about the whereabouts of the children, she is very much concerned about the safety of the children as the children were particularly attached to her. The respondent is given to fits of violent temper and he is bound to beat them if they should cry or ask for the petitioner. On enquiry, the petitioner learned from the neighbours that they heard the cry of the children and the shouting of the respondent at them. Hence, it is not in the welfare of the children to be deprived of their mother's care and affection. Such an act of deprivation by the respondent is illegal besides being harsh and cruel not only to the petitioner but also to the children themselves.

Further, the petitioner suspects that the respondent has taken the children away from Madras and put them in the care of strangers. They must be undergoing trauma is a result of the respondent's cruel, thoughtless and selfish behaviour. The respondent is not at all interested in the welfare of the children. Above all, withdrawal of the children from the school in the middle of the academic year is detrimental to their studies. The continued custody of the children with the respondent is illegal and definitely not in the interest of the minor children. Hence this writ petition.

3. In the counter-affidavit filed by the respondent, besides denying the various allegations, he inter alia contends as follows:- He admitted the marriage and the birth of the children. According to him, their married life was a happy one and they had two children,