- (1.) HEARD learned counsel for the petitioner, learned counsel for the respondents no.1 and 2 and learned A.G.A. for the State. Vide order dated 17.11.2014, the question, which was framed as a preliminary question is; While exercising jurisdiction under Article 226 of the Constitution of India for deciding habeas corpus writ petition the question of custody of a minor child would be decided by the High Court on the sole ground of legal right or the welfare of child would be the paramount consideration?
(2.) IN this case, the next friend Devki Nandan Bhatt alias Dinesh Bhatt of the alleged detenue Neeharika Bhatt aged about six years is father and claiming himself to be the natural guardian. The alleged detenue is said to have been in the custody of respondent no.4 Brij Lal Gautam, respondent no.5 Smt. Vimal Devi and respondent no.6 Prabhat Milind, who are the material grandfather(Nana), maternal grandmother(Nani) and material uncle (Mama) respectively of the alleged detenue.
(3.) THE contention of learned counsel for the petitioner is that if the natural guardian is alive, the other person cannot be allowed to keep a child, even if, they are the parents or other family members of the mother of the child. He relied upon the judgement of this Court in case of Saroj Devi and others Vs. State of U.P. and others,2013 2 JIC 652. Learned counsel for the respondents no.1 and 2 submits that so far as the question regarding custody of a minor child is concerned, the paramount consideration would be welfare of the child, irrespective of fact that proceedings are in the form of habeas corpus petition or under the Guardians And Wards Act or any other statute.;