The welfare of the child is the paramount consideration in custody matters, and legal rights must be secondary.

K. N. Sinha, J.—Heard Sri R. B. Singhal, learned counsel for the petitioners’ Smt. Sadhna Upadhyay learned counsel for the respondent Nos. 1 and 2 and the learned A.G.A. appearing for respondent Nos. 3 to 5.

2. The habeas corpus petition has been filed under Article 226 of the Constitution of India for issuing a writ to produce petitioner No. 2 and set him at liberty and entrust the custody of petitioner No. 2 to petitioner No. 1. The grounds set forth for the said prayer is that petitioner No. 1 Bal Kishan Rastogi is the father of Karan Rastogi petitioner No. 2, who is in illegal confinement of respondent Nos. 1 and 2.

3. Petitioner No. 1 is the resident of Kayamganj, district Farrukhabad and carrying on the business of tobacco. He is the father and natural guardian of petitioner No. 2 who is aged about 7 years. The wife of the petitioner No. 1 was not keeping good health and as such he had permitted his sister Smt. Kamlesh Rastogi, the respondent No. 2, to look after the child. Dr. Reena Rastogi (respondent No. 1) is the daughter of respondent No. 2 and had been looking after the petitioner No. 2 since infancy. Smt. Savita Rastogi, wife of the petitioner No. 1 has now recovered from ailment and given birth to a female child and is in position to look after and take care of her children. The petitioner No. 1 filed an application before the Senior Superintendent of Police, Meerut, for the custody of petitioner No. 2, whereupon the Senior Superintendent of Police, Meerut, directed S.H.O. Kotwali to set at liberty the petitioner No. 2. The said copy of the application is Annexure-1. The petitioner No. 1 has also moved an application to City Magistrate, Meerut for issue of search warrant, whereupon S.H.O. Kotwali submitted a report. The City Magistrate, however, refused to issue search warrant and rejected the application. Dr. Reena Rastogi (respondent No. 1) having no employment and no source of her livelihood, is dependent on her parents, hence she cannot maintain and take care of petitioner No. 2. Therefore, the petitioner moved this writ petition with the above prayer. He has also annexed the copy of the application moved to Senior Superintendent of Police, Meerut and the City Magistrate, Meerut.

4. The petitioner filed supplementary-affidavit annexing certified copy of the order dated 22.5.2004 of the Civil Judge (Senior Division), Meerut in Case No. 91 of 2004, Dr. Reena Rastogi v. Bal Kishan and others, whereupon the order dated 20.2.2004 was recalled.

5. This Court, by order dated 12.3.2004, directed the production of the detenu. The respondents filed an application for recall of the order dated 12.3.2004 and also filed the counter-affidavit on the ground that the petitioner is the real brother of the respondent No. 2 Smt. Kamlesh Rastogi. Dr. Beena Rastogi is a divorced lady and daughter of Smt. Kamlesh Rastogi. The petitioner No. 2 Master Karan Rastogi was born on 12.10.1996 during the wedlock of petitioner No. 1 Bal Kishan Rastogi and Smt. Savita Rastogi. Smt. Savita Rastogi was suffering from mental illness and was not in a position to take care of child. On 20.12.1996, the petitioner No. 1 and his wife gave Master Karan Rastogi in adoption to respondent No. 1 when Master Karan Rastogi was infant only of two months. Ever since 20.12.1996 Master Karan Rastogi was under the nursing and care of respondent No. 1 and was admitted in Dewan Public School. The document of the School is Annexure-CA-1. Smt. Savita Rastogi was admittedly suffering from old and chronic mental disorder which is detailed in the application dated 9.2.2004 (Annexure-1 to the writ petition). In the application dated 9.2.2004, it has been mentioned that her condition may further deteriorate. In the Original Suit No. 91 of 2004 the respondent No. 1 has been appointed as Guardian. The copy of the plaint and order are Annexures-2 and 3 of the counter-affidavit. In whole of the application, there is no mention about the welfare of the minor child.