Hon’ble Barkat Ali Zaidi, J.—In this Habeas Corpus petition, we are faced with a somewhat quaint episode.

2. The father of the child, who is the subject matter of this Habeas Corpus petition went to a country liquor shop in Allahabad where he resides, for a bachnalian binge. The child also went with him while the father was enjoying his drink the child disappeared and could not be traced despite intensive search.

3. The child (Akbar) at that time was six years old. The child strayed into uncharted territory and surfaced in Lucknow. Three years thereafter, the father and the petitioner mother came to know from a T.V. coverage about the presence of their child with the respondent Aiku Lal at Lucknow. Thereafter, the parents of the child went to Lucknow and contacted Aiku Lal, the respondent, who runs a tea stall in Qaiser Bagh, Lucknow but the allegation is that Aiku Lal did not hand over the child to parents, and, that is why, the mother of the child has come up with this Habeas Corpus petition.

4. Heard Sri K.K. Roy, Advocate for petitioners, Sri Nizam Khan, Advocate for respondent Aiku and Sri Mohammad Israil Siddiqui, Addl. Government Advocate for the State.

5. The surprising feature in the petition is that no prayer has been made for the custody of the child and only production of the child, in the Court has been asked, which is a Faux Pass of Draftsmanship.

6. The allegation is, that the child is being detained as a bonded labourer, but in his reply, the respondent has successfully refuted this allegation, while informing the Court, that he is keeping the child as his son, because, he is unmarried, and he has produced the Mark-sheet and the extract of school register of Prathamic Vidhyalaya, Qaiser Bagh, Re Camp, Lucknow, in order to show, that, the child is studying there.

7. The respondent has further said that he found the child weeping in a park at Lucknow, and he could not disclose the names of his parents and address, and that is why the respondent retained the child, with him. He has further stated, that it will be seen that the child disclosed his name as, Akbar, and he was admitted to the school with the same name as, will appear from the school documents referred to above and he has not changed his name, though, he has given his name in place of his father, because, the name of the father was not known.

8. As regards the allegation that respondent Aiku Lal has been taking work from the child at the Tea Stall, the respondent has said that since he remains at the tea stall, the child also has to be with him there, and he is not made to work as servant. The respondent has further said, that, though he has developed attachment with the child during his association of four years because he is maintaining him as a son, yet, if the child is willing to go, he has no objection.

9. In determining the custody of the child, the paramount consideration has to be the welfare of the child and that is what, the Guardians and Wards Act, (Act No. 8 of 1890) also stipulates. All other considerations including the right to custody under any law, must yield, to the question of the welfare of the minor.

10. What we must, therefore, see where the welfare of the minor lies?

11. Section 17 (3) of the Guardians & Wards Act, 1890, provides as follows :

“17. Matters to be considered by the Court in appointing guardian.—(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of the kin to the minor, the wishes, if any, of a deceased parent and any existing or previous relatives of the proposed guardian with the minor or his property.

(3) If minor is ol