The welfare of the child is the paramount consideration in determining custody of a minor child, and the court has the discretion to award custody to the person who is best able to provide for the child's welfare, even if that person is not the child's natural guardian.

( 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 t