The welfare of the child is the paramount consideration in determining his custody, and not the legal rights of the parties.

G. P. Mathur, J.

1. Smt. Beena Jaiswal has filed this habeas corpus petition praying that her son Himanshu Kumar alias Lucky be released from the illegal custody of the respondents and be handed over to her custody. The respondent No. 1 Deepak Kumar is the husband of the petitioner, respondent Nos. 2 and 3, namely, Ram Dulare and Smt. Kunta are her-in -laws and respondent No. 4 Akkoo is her husband's brother.

2. THE case of the petitioner, in brief, in that she was married to Deepak Kumar on 4-12-1992 and her parents gave substantial dowry in the marriage. However, the respondents continued to make further demands of dowry. She give birth to a male child Lucky alias Himanshu Kumar on 9-5-1994 at her parents house who live in the same city of Kanpur. THE respondents tried to forcibly take away the child Lucky on 22-5-1994 re garding which a complaint was made at the police station and at the intervention of the Incharge, SI of the police station, an agreement was arrived at between the parties and thereafter the started living in her husband's home. THE respondents gave her very cruel treatment regarding which she gave information to her parents who came and took her to their house. THE respondents did not allow her to take her son Lucky and they were illegally detaining him. THE case of the respondents is that there was no demand of dowry and some ordinary gifts were given at the time of marriage which are customary in the family. THE petitioner and her parents triad to create problems soon after the marriage and they wanted that Deepak Kumar should live separately and away from his parents and other family members. Rohit-brother of the petitioner abused and misbehaved with the respondents on several occasions and even threatened them with regard to the incident which took place on 22-5-1994. A First Information Report was lodged on the next day but the matter was got compromised at the intervention of some persons and police official. THE petitioner left the house of her husband without his consent sometime in July/august, 1994 leaving the child-Lucky and continued to live in her parents house for quite sometime. She came back but again left the house of her husband on 3-12-1994 against his wishes leaving her son. A FIR regarding this incident was lodged on the same night. THE petitioner moved an application under Section 97, Cr PC which was dismissed. It is further pleaded that the petitioner has herself left the house of her husband as she does not want to stay with his parents and other relations and that she has no love or affection or concern for her son Lucky alias Himanshu Kumar.

Shri A. K. Yog learned counsel for the respondents has submitted that as the child is living along with his father and paternal grand parents, he is not being forcibly or unlawfully detained and as such the habeas corpus petition is not maintainable. According to learned counsel if the petitioner wants to get custody of her son, the proper remedy is to file a petition under Guardians and Wards Act. In my opinion, the contention of Sri Yog that a writ of habeas corpus is not maintainable is not correct. In Extraordinary Legal Remedies by Ferris and Ferris in para 4 it has been observed while dealing with habeas corpus petitions that such a writ is maintainable for custody of infants at the instance of the party who is entitled to their custody. In Halsbury's Laws of England Vo. 11 para 1469, the law on the point has been stated as under: "a parent, guardian or other person who is legally entitled to the custody of a minor can regain that custody, when wrongfully deprived of it, by means of writ of habeas corpus. For the purpose of the issue of the writ the unlawful detention of a minor from the person who is legally entitled to his custody it regarded as equivalent to unlawful imprisonment of the minor. In applying for the writ it is, therefore, unnecessary to allege that any restrain or force is being used towards the minor by the pe