Mukerji, J.

[1] This is an application by three persons, Gopal Ji, Laxmi Devi and Radha Krishna, under Section 491, Criminal P. C., as also under Article 226 of the Constitution of India. Article 226 has apparently been added because the prayer which has been made is a prayer that is generally made in applications for 'habeas corpus'. The prayer is that a writ of 'habeas corpus' be issued to set at liberty Gopal Ji and Laxmi Devi, applicants Nos. 1 and 2, from illegal detention and illegal custody of the opposite parties.

[2] The allegations on which this application was founded were that Gopal Ji and Laxmi Devi are two minor children of applicant No. 3, Radha Krishna. Gopal Ji is a boy of about six years, while Laxmi Devi is a little girl of about two years of age. The mother of these two minor children suddenly died of cholera on 2-11-1953 at the Colvin Hospital, and that Shri Chand and Kamta Prasad, the opposite parties, thereafter took away the two minor children to their house, that the opposite parties have refused to send back the children to their father and they are demanding a sum of Rs. 500/- as a kind of ransam for sending back these children.

In the affidavit it was alleged that the children were in danger of harm, and that if they were not forthwith released from the custody of the opposite parties then there was grave danger to their life. It may be here stated that in the affidavit of the petitioner no mention was made as to there being any relationship between Srichand and Kamta Prasad on the one hand and the three petitioners on the other. From the affidavit and the petition it appeared as though the opposite parties were total strangers, and that they were detaining the two minor children in order to make unlawful gain out of their detention.

[3] Notices were issued to the opposite parties to show cause, and in answer to that notice the opposite parties have shown cause and have also produced the two minor children in Court today in order to receive final orders in regard to their custody from us.

[4] The counter-affidavit filed by Kamta Prasad on behalf of the opposite parties discloses that Kamta Prasad is the Mausa (a kind of maternal uncle) of the two minors, and opposite party Srichand is the maternal uncle of the minors. From the counter-affidavit it is clear that when Gayatri Devi, the mother of the two minors, was taken seriously ill on 22-11-1953, then her sister, that is to say, Kamta Prasad's wife, rushed to see her. While this lady was in the company of the very ill Gayatri Devi, she told her that she was dying and she wanted her to look after her little children in the event of her death. Gayatri Devi died in hospital the same night as she had an attack of virulent cholera and the children were, according to the allegations in the affidavit, removed the same night to the house of Kamta Prasad by his wife who was the maternal aunt of the minor children.

It is beyond controversy that from that time onwards the children have been in the custody of these maternal relations of theirs. The period of their stay with these relations has been seven months--this application having been made on 21-5-1954. The fact that such a long time lapsed or was permitted to lapse between the period of the removal of the children and the petition being made to this Court for their custody or their recovery back, indicates to us that the petition was made not because the detention of the children was illegal, at any rate, in the point of view of the petitioner, from its inception, or that there was any danger, to begin with, to the lives of the children if they remained in the custody of the opposite parties. We have a feeling that this petition has been made for other reasons than those disclosed to us in the affidavit filed on behalf of the petitioner.

[5] We examined Gopalji, the little boy of sis years, and we were impressed by the intelligent manner in which he understood our questions and replied to them. He w