The welfare of the minor is the paramount consideration in determining their custody.

( 1 ) THIS is a habeas corpus petition under Article 226 of the Constitution filed by two minors Km. Sunita and her brother Sushil through their father Kashi Prasad against Smt. Shyam Kali, step mother of their deceased mother Smt. Tara. The application is supported by an affidavit of Kashi pra-sad, Kashi Prasad is a trolley man in the northern railway and lived in loco colony in the city of Kanpur. Smt Shyam Kali lives in the city of Allahabad. The petition was filed on 25-8-1981. Undisputedly the petitioners are living with the opposite party and receiving education at allahabad,

( 2 ) THE allegations of Kashi Prasad are that he wants to keep the minors with him, that he asked the opposite party to allow the minors to live with him and that the opposite party was illegally detaining them, It is undisputed that Smt. Tara died in or about the year 1974 at Aligarh. According to Kashi Prasad after the death of Smt, Tara he kept Sunita with his brother and that later on he allowed Sunita to live with the opposite party. Sushii remained with him, Since last year Sushii was kept with the opposite party, He used to meet the expenses of the maintenance of his children. He had re-married. Therefore, he wanted children back. But instead of handing over sending the children to him, the opposite party mis-behaved with him and his second wife.

( 3 ) SMT. Shyam Kali filed counter-affidavit in which she purported to depose that Kashi prasad used to illtreat Tara Devi, that therefore Tara Devi mostly used to live with her at Allahabad alone with her 3 children, that one child died at Allahabad at the age of 4 years that the two petitioners were constantly living with her that Sushil lived with his father for 2 years only and studied in classes 3 and 4 with him, that Kashi Prasad did not pay for the maintenance of the petitioners despite notice that therefore, an application under Section 125 Cr. P. C was moved on behalf of the petitioner on 15-12-1980 that Kashi Prasad then filed this petition mala fide, that kashi prasad was never willing to keep the petitioner, Shat whenever the petitioners went to the place of Kashi prasad, they were used to be ill-treated that she had no objection in sending the petitioners to Kashi Prasad provided the petitioners were willing to live with him, that it would be unjust and inhuman if the petitioners are forced to live with him, that Kashi Prasad did not venture to move an application under the provisions of Guardians and Wards Act, 1890, that the petitioners are not at all willing to live with their father and that it was not in the interest of the minors that they should be handed over to their father.

( 4 ) ALONG with the counter-affidavit the opposite party filed a copy of the application under section 125 Cr. P. C, (Annexure 1 ). She denied the allegation that she misbehaved with Kashi prasad and his second wife.

( 5 ) KASHI Prasad filed rejoinder affidavit saying that it was wrong to say that the petitioners were not willing to live with him and that the petitioners were badly treated by him and his second wife,

( 6 ) DURING the hearing of this petition, the opposite party moved an application on 24-8-1981 supported bv her affidavit that the petitioners be examined by the Court and she be allowed opportunity to lead evidence. Kashi Prasad filed counter-affidavit on 28-9-1981 in which he contended that in these proceedings it was not permissible to take evidence and that the petitioners could give statement against him under the influences of the opposite party with whom they are living,

( 7 ) THERE is little variation between the parties with regard to the age of the petitioners, According to Kashi Parsad Km, Sunita is aged about 12 years and Sushil 10 years. According to Smt, shyam Kali Km. Sunita is aged 14 years and Sushil 12 years.

( 8 ) IN order to succeed in this case, it is necessary for Kashi Prasad to show two things (1) the petitioners are in the illegal detention of the opposit