JUDGMENT O.P. Saxena, J. - By this petition under Article 226 of the Constitution of India, the Petitioners have prayed for a writ of habeas corpus directing the opposite parties to produce the Petitioners before the Court, and thereafter the Petitioners be set at liberty. 2. Km. Rubi, aged about 8 years, Rustam, aged about 6 years, and Km. Rosi, aged about 2 1/2 years, have filed this petition through their mother and natural guardian, Smt. Ishrat Banc. 3. Opposite party No. 1, Hayat Mohammad is the grand-father of the Petitioners, opposite party No. 2, Smt. Khairunnisan is the second wife of opposite party No. 1. Opposite party Nos. 3. 4 and 5, namely Rafiq Ahmad, Mohammad Ayub and Mohammad Yaqub, are the sons of opposite party No. 1. 4. Smt. Ishrat Bano and Mohammad Yasin were married in the year 1972. On 11.6.1985, at about 8 a. m., at Chak Lai Mohammad, Police Station Naini, Allahabad, a shooting incident took place, in which Jamiluddin alias Jumman and Mohammad Yasin were injured and both succumbed to their injuries. Mohammad Yasin died at Swarup Rani Memorial Hospital, Allahabad and he was brought to village Barethi, where opposite party No. 1 resides, for his last rites. The Petitioners, their mother, Smt. Ishrat Bano, and their invalid brother, Sohrab, also went there. 5. Annexure-3 to the rejoinder-affidavit is copy of the report lodged by Mohammad Farrukh, the brother of Jamiluddin, at police station Naini, Allahabad. Crime No. 253, u/s 302 IPC was registered. Annexure-1 to the counter-affidavit dated 24.8.1985 is copy of the application given on 12.6.1985 by opppsite party No. 1, regarding the incident. There was divergence in the two versions but the fact remains that Jamiluddin alias Jumman and Mohammad Yasin died as a result of the incident. 6. In July 1985, opposite party No. 1, Hayat Mohammad filed suit No. 268 of 1985 against Smt. Ishrat Bano and others for a declaration that the assets of deceased Mohammad Yasin belong to the Plaintiff and Defendant Nos. 2 to 13 jointly. Defendant No. 1 was Smt. Ishrat Bano ; Defendants 10, 11 and 12 were the present Petitioners ; and Defendant No. 13 was Mohammad Sohrab, another son of the deceased, who was invalid. 2 to 13 jointly. Defendant No. 1 was Smt. Ishrat Bano ; Defendants 10, 11 and 12 were the present Petitioners ; and Defendant No. 13 was Mohammad Sohrab, another son of the deceased, who was invalid. A permanent injunction was also claimed against Defendant No. 1 restraining her from taking forcible possession or disturbing the peaceful possession of the Plaintiff, over house No. 96/8, Chak Lai Mohammad, Bharti Nagar, Naini, Allahabad as well as the house hold effects and ornaments kept therein, and also from obtaining any money payable by the Indian Telephone Industries, Naini, Allahabad or any money in deposit with the State Bank of India in the name of Mohammad Yasin, consequent on his death. 7. On 2.8.1985, the Petitioners filed the present petition. It was alleged that when the Petitioners and their mother had gone to the house of opposite party No. 1 in village Barethi to join the last rites of Mohammad Yasin, the opposite parties began abusing the Petitioners' mother and asked her to leave the house. She requested for permission to stay till the next morning but it was refused, and the opposite parties threatened that in case she continued to stay, they would burn her alive. She had to take shelter in a neighbouring house. On the next day, the neighbours tried to intervene but the opposite parties did not relent, and they detained the Petitioners wrongfully. The Petitioners' mother escaped with Petitioners' brother, Sohrab, who was invalid by birth and was ill, and the opposite parties continued to detain the Petitioners wrongfully. 8. In the counter-affidavit filed by the opposite party No. 1 it was alleged that Mohammad Yasin died on account of an assault which took place at the instance of Smt. Ishrat Bano ; that Mohammad Yasin had divorced her on 22.4.1985, that Smt. Ishrat Bano wants to grab the property of Mohammad Yasin and the money payable to him from Indian Telephone Industries where he was employed, and also his bank account in the State Bank of India, Naini. Allahabad, that Smt. Ishrat Bano filed an application u/s 125, Code of Criminal Procedure on 22.10.1984 (vide Annexure-2); that the opposite parties did not forcibly detain the Petitioners ; and that the interest of the Petitioners is safe in the custody of the opposite party No. 1. 9. Allahabad, that Smt. Ishrat Bano filed an application u/s 125, Code of Criminal Procedure on 22.10.1984 (vide Annexure-2); that the opposite parties did not forcibly detain the Petitioners ; and that the interest of the Petitioners is safe in the custody of the opposite party No. 1. 9. In the supplementary counter-affidavit filed on 29.8.1985 it was .said that opposite party No. 2, Smt. Khairunnisan, has filed a petition for the lawful custody of the Petitioners under Guardian and Wards Act. Annexure 5 is the copy of the application which was sworn on 23.8.1985, i. e. after the filing of this petition. 10. In the rejoinder-affidavit filed by Smt. Ishrat Bano, it was denied that she had any hand in the murder of her husband or that he had divorced her. Annexure 3 to the rejoinder-affidavit is a copy of the report lodged by Mohammad Farrukh regarding the occurrence. Annexure 2 is a copy of the newspaper Amrit Prabhat published on 12.6.1985, in which there was reference to the shooting incident. Annexure 1 is a photostat copy of the letter dated 5.6.l985 sent by Mohammad Yasin to the Petitioners' mother ask)Bg her to come back and stay with him. On behalf of the Petitioners it was alleged in paragraph No. 6 that at the time of the death of Mohammad Yasin, the Petitioners and their mother were living with him at his house in Naini, Allahabad. The number of the house was 96/8, Chak Lai Mohammad, Bharti Nagar, Naini, Allahabad. 11. In the supplementary rejoinder-affidavit it was said that the Petitioners' mother had received no notice of the application given by opposite party No. 2 under the Guardian and Wards Act but it appeared that some application was given by her after the filing of this petition. It was also said that opposite party No. 1 had filed a suit in the civil court. Annexure 1 to the supplementary rejoinder-affidavit is a copy of the plaint. 12. In the counter-affidavit filed on 18.9.1985 it was said that Smt. Ishrat Bano was not a proper person to be appointed guardian as her son, Sohrab, died on account of her neglect. 13. In the rejoinder-affidavit filed on 23.9.1985 in reply to the aforesaid counter-affidavit it was said that Sohrab was invalid and ill, and it was for this reason that the opposite parties did not keep him with them. 13. In the rejoinder-affidavit filed on 23.9.1985 in reply to the aforesaid counter-affidavit it was said that Sohrab was invalid and ill, and it was for this reason that the opposite parties did not keep him with them. It was further said that proper treatment was given to sohrab and that the opposite parties never made any contribution to the treatment of the child. 14. In the supplementary counter-affidavit filed on 18.11.1985 it was said that opposite party No. 1 had an income of Rs. 500/- per mensem from the sale of bangles and that he had three more sons, two of whom are doing cycle-repair business and one is selling fruits. It is also said that opposite party No. 1 got the Petitioner Nos. 1 and 2 admitted in Bal Bharti Nursery School, Balrampur Barethi. Annexure 'C is a photostat copy of the certificate of the Principal to this effect. 15. In the supplementary affidavit filed on 6.12.1985 it was said that Smt. Ishrat Bano was carrying on the business of selling bangles, and her income was Rs. 700/- per mensem. She had also applied for a job in place of her husband. The mother of Smt. Ishrat Bano executed a gift dated 10.7.1985 in respect of Suhag Store situate in house BO. 78, Kolihan Tola, police station Shahganj. Allahabad in favour of Smt. Ishrat Bano to ensure her prospects of good income. In paragraph No. 8, it was said that opposite party No. 2, Smt. Kbairunnisan, is the second wife of opposite party No. 1, Hayat Mohammad, and the step mother of deceased Mohammad Yasin. She had no love or affection towards the children. She is illiterate, conservative and believes in Tona Tutaka. The two children had developed a fear psychosis while living with her. It was also said that opposite party No. 1 was a hardened criminal and that criminals very often visit his place. 16. In the supplementary counter-affidavit filed on 30.1.1986 it was not disputed that opposite party No. 2 is the second wife of opposite party No 1. It was not denied that she is the step-mother of Mohammad Yasin. Other facts were denied. 17. 16. In the supplementary counter-affidavit filed on 30.1.1986 it was not disputed that opposite party No. 2 is the second wife of opposite party No 1. It was not denied that she is the step-mother of Mohammad Yasin. Other facts were denied. 17. There is no substance in the contention of Sri A.N. Bhargava, learned Counsel for the opposite parties that the proper forum for the consideration of the guardianship of the minors is the District Court where opposite party No. 2, Smt. Khairunnisan, has filed an application under the Guardian and Wards Act. He placed reliance on the case of D.P. Sampaih v. Govindammal AIR 1952 Mad 98 . 18. Sri J.S. Sengar, learned Counsel for the Petitioners, pointed out that the application under the Guardian and Wards Act has been filed by opposite party No. 2 long after the filing of this petition on 2.8.1985. The said application was sworn by Smt. Khairunnisan on 23.8.1985 (copy Annexure-5 to the supplementary counter-affidavit filed on 29.8.1985) He placed reliance on certain rulings in support of his contention that an application under the Guardian and Wards Act is no bar to a habeas corpus petition. 19. In Gopal Ji and Others Vs. Shree Chand and Another, AIR 1955 All 28 it was held by this Court that it is possible for a legal guardian to initiate proceedings by a petition of habeas corpus to recover the custody of minors if these minors are in illegal custody or if the minors are being detained in custody which would be detrimental to the interest of the minors. In determining whether or not relief is to be granted to a Petitioner, the paramount consideration should be the welfare of the minors. If in the circumstances of any particular case, it appears to the Court that the paramount interests of the minors do not demand that action be taken, it is open to the Court to refuse the prajer. 20. In Smt. Ainunnisa Vs. Mukhtar Ahmad and Another, AIR 1975 All 67 it was held that the welfare of the minor is important and that legal guardianship is not material. 21. In Dr. (Mrs.) Veena Kapoor Vs. 20. In Smt. Ainunnisa Vs. Mukhtar Ahmad and Another, AIR 1975 All 67 it was held that the welfare of the minor is important and that legal guardianship is not material. 21. In Dr. (Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor, AIR 1982 SC 792 it was held that paramount consideration in such cases is the welfare of the minor, and not the rights of the parties Ttie dismissal of a petition by the mother for the custody of the children on the ground that the father's custody is not illegal was held to be improper. 22. In Savitaben Lagharbhai Vs. Manji Ramji Chavda and Another, (1983) CriLJ 598 it was held that once it is alleged that the minors are detained, the petition under Article 226 of the Constitution for their custody will be maintainable. 23. In Smt. Nandita Virmani v. Raman Virmani 1983 CriLJ 794 it was held that the pendency of a guardianship petition before a civil court does not affect the jurisdiction of the High Court to entertain a habeas corpus petition. 24. In Durgesh Kumar Ahuja Vs. Vineet Khurana and Another, (1985) CriLJ 1195 it was held that the alternative remedy under the Guardian and Wards Act is no bar to a petition of habeas corpus under Article 226 of the Constitution. 25. On a careful consideration of the legal position I hold that the subsequent filing of an application under tbe Guardian and Wards Act by opposite party No. 2 Smt. Khairunnisan, does not affect the jurisdiction of this Court to consider the petition for habeas corpus. 26. The question arises as to whether the Petitioners are being illegally detained by the opposite parties. Paragraph Nos. 7 to 9 of the petition give a graphic description of the circumstances in which the opposite parties snatched the Petitioners from their mother. In ihe counter-affidavit, Paragraph Nos. 6 and 7 of the petition were not admitted. It was not specifically denied that the opposite parties threatened the Petitioner's mother that they did not want to see her face or that they would throttle her neck or that they would burn her alive by sprinkling kerosene oil Paragraph No. 9 of the petition was not admitted. A half-hearted denial of the averments made by Smt. Ishrat Bano clearly shows that there is much substance in her version. A half-hearted denial of the averments made by Smt. Ishrat Bano clearly shows that there is much substance in her version. It is rather strange that the opposite parties allege that the Petitioner's mother wants to grab the property and money payable to Mohammad Yasin. The truth of the matter is that opposite party No. 1 has himself filed a suit for a declaration regarding the property of Mohammad Yasin. Annexure 1 to the rejoinder-affidavit filed in reply to the supplementary counter-affidavit is a copy of the plaint verified on 25.7.1985. Mohammnd Yasin died in the middle of June 1985, and the suit was filed soon thereafter. Petitioner No. 3, Km. Rosi, aged about two and a half years, was returned to the Petitioners' mother during the pendency of these proceedings in pursuance of an order passed by this Court. I believe the Petitioners' version and hold that the Petitioners were wrongfully detained by the opposite parties when they had gone with their mother to the house of opposite party No. 1, Hayat Mohammad, in village Barethi in the last rites of their father, and Petitioner Nos. 1 and 2 continued to be in their illegal detention. 27. There is no substance in the contention of the opposite parties that Smt. Ishrat Bano had a hand in the assault made on Mohammad Yasin, which resulted in his death. This fact was not even mentioned in the report lodged by opposite party No. 1. Annexure 1 to the counter-affidavit filed on 24.8.85 is a copy of the said report. 28. There is no substance in the version of the opposite parties that Mohammad Yasin had divorced Smt. Ishrat Bano on 22.4.1985. It is true that there were some differences between the husband and the wife, and the wife bad to go to her father's place. It is also true that on 22.10.1984 she filed a petition u/s 125 Code of Criminal Procedure. The opposite parties have not filed the copy of any reply filed by Mohammad Yasin to this petition. There is no documentary evidence to support the version of the opposite parties regarding the divorce. The Petitioners' mother has denied the same. Annexure 1 to the rejoinder-affidavit filed on 3.9.1985 is a photostat copy of the letter dated 5.6.1985 sent by Mohammad Yasin to the Petitioners' mother. There is no documentary evidence to support the version of the opposite parties regarding the divorce. The Petitioners' mother has denied the same. Annexure 1 to the rejoinder-affidavit filed on 3.9.1985 is a photostat copy of the letter dated 5.6.1985 sent by Mohammad Yasin to the Petitioners' mother. This letter shows that he had all love and affection for the Petitioners and their mother and he very keenly requested them to come back and live with him in his house No. 96/8, Chak Lai Mohammad, Naini Allahabad. This letter further falsifies the opposite parties' version regarding divorce, and I hold that the same is unworthy of reliance. 29. There is no substance in the contention that the Petitioners' mother neglected the treatment of Sohrab and that he died as a consequence thereof. It is not disputed that Sohrab was invalid and ill. and it was probably for this reason that the opposite parties did not detain him when they detained the Petitioners in their custody. I see no reason to doubt the averment made by the Petitioners' mother in the re oinder-affidavit in reply to the counter-affidavit of Hayat Mohammad dated 18.9.1985. This rejoinder-affidavit was filed on 23.9.1985. I am satisfied that the Petitioners' mother took whatever care was possible to give proper treatment to Sohrab, and she could not save him from death. On the contrary, the evidence does not show that the opposite parties ever bothered or made any contribution towards the treatment of Sohrab. 30. Under the Mohamedan Law, a female is disqualified from custody of a child only on certain grounds. These grounds have been given in para 354 of the Principles of Mahomedan Law by Mulla 13th Ed. . 297. This para reads as below: 354. Females when disqualified for custody-A female, including the mother who is otherwise entitled to the custody of a child, loses the rigbt of custody- (1) if she marries a person not related to the child within the prohibited degrees (ss. . 297. This para reads as below: 354. Females when disqualified for custody-A female, including the mother who is otherwise entitled to the custody of a child, loses the rigbt of custody- (1) if she marries a person not related to the child within the prohibited degrees (ss. 260-261), e.g. a stranger (m), but the right revives on the dissolution of the marriage by death or divorce (n) ; (2) or, if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence ; or, if the is leading an immoral life, as where she is a prostitute ; or, (4) if she neglects to take proper care of the child. The opposite parties have not alleged any of the grounds aforesaid disqualifying the Petitioners' mother Jrom being given the custody of the Petitioners. 31. The welfare of the minors is the paramount consideration in such matters. Smt. Ishrat Bano is the mother of the minors. Two of them are daughters, aged about b years and two and a half years. One is a son, aged about 6 years. She is the best person to bring up the children with all love and affection. Opposite party No. 1 is the grand-father of the Petitioners. The manner in which he filed the Civil suit soon after the death of Mohammad Yasin, however, shows that he is more interested in grabbing the property of Mohammad Yasin to the exclusion of his legally wedded wife, Smt. Ishrat Bano. Opposite party No. 2 is admittedly the second wife of opposite party No. 1 and is the step mother of Mohammad Yasin deceased. This fact was specifically alleged in para 8 of the supplementary affidavit filed on 6.12.1985. It was not denied in para s of the supplementary counter-affidavit filed on 30.1.86. The step-mother of Mohammad Yasin cannot be expected to have any natural love and affection for his children. With a second wife in the house, all the love and affection of opposite party No. 1 cannot ensure a happy and peaceful life for the children. It is a matter of common know?e'ge that men have to go away from the house in connection with their business and it very much depends upon the woman of the house as to how she treats the children. It is a matter of common know?e'ge that men have to go away from the house in connection with their business and it very much depends upon the woman of the house as to how she treats the children. s opposite party No. 2 is the second wife of opposite party No. 1 and the step-mother of the father of the Petitioners, one cannot expect her to share the love and affection of her husband, opposite party No. 1, for the children, and the children cannot be expected to have a peaceful and happy life whiie living with the opposite parties. The supplementary affidavit filed by the Petitioners on 6.12.1985 shows that Smt. Ishrat Bano has an income of Rs. 700/- per mensem. In the supplementary counter-affidavit filed on 18.11. 985, the opposite party No. 1 claimed an income of only Rs. 500/- per mensem. The Petitioners' maternal grand-mother has further made a gift of Suhag Store to their mother. The Petitioners' mother is naturally expected to spend each and every naya paisa on the welfare and upkeep of the minors. The same cannot be expected from opposite party No. 1, who is more interested in the property left by Mohammad Yasin, or from opposite party No. 2, who is the step-mother of the Petitioners' father. I am satisfied that the interests of the minors require that they be restored to the custody of their mother who is also their natuial guardian. 32. The petition is allowed and the opposite parties are directed to produce the Petitioners Nos. 1 and 2 before the Court on 10.2.1986 so that they may be set at liberty and restored to the lawful custody of their mother, Smt. Ishrat Bano.