- (1.) G. S. N. Tripathi, J. This is a petition under Article 226 of the Constitution of India, seeking a writ of Habeas Corpus directing, respondent No. 3 to produce the. child Master Mehdi Hasan, s/o Harson Khan, r/o Village Chaman Nagariya, P. S. Nawabganj, Distt. Bareilly, through his mother Smt. Nafisa Begum wife of late Haroon Khan.
(2.) ADMITTED facts are these: Master Mehdi Khan was born through the union of late Haroon Khan with Smt. Nafisa Begum. Haroon Khan died in an accident. There after Smt. Nafisa Begum married with the brother of her late husband and this mar riage continues. Master Mehdi Hasan is, admittedly, in the physical custody of Bhurey Khan and his wife, who are the real maternal grand father and grand mother of the child. The child has been brought from the custody of Bhurey Khan and his wife and is present in the court. The child do not wish to go to his mother although the tried to catch hold of him. The child started crying. The court ordered Smt. Nafisa to release the child to go anywhere he likes. Smt. Nafisa, after great resistance, released the child. The childran into the custody of his, maternal grand mother and grand father.
(3.) THE legal position is not disputed that the mother is a better guardian than maternal grand mother and grand father. But this consideration changes the moment the mother remarried with the brother of his late husband. That is the thing which has happened in this case. This is prime importance in this case. Another important ques tion in this case is as to who is the best custodian of the child in his interest. I think, after the mother has remarried, the custody of the maternal grand mother and grand father will be certainly better than that of the mother Smt. Nafisa Begum. In the inter est of the child's welfare etc. I find that the custody of the child with the maternal grand mother and grand father will be better than that of Smt. Nafisa Begum. In this connection, the petitioner has already moved an application under the Guardian and Wards Act before the District Judge concerned. That court will certainly decide the matter according to the legal position. But so far this Court is concerned, I find that the better custodian of the child will be the maternal grand mother and grand father. They are entitled to keep this child into their custody.;