Judgment V.P. Mathur, J. 1. SMT. Rizwana Begum wile of respondent Sabir Ali has filed this habeas corpus petition on behalf of her 4 years old minor son Shoib alias Shebu. The respondent is her husband. 2. THE facts mentioned in the petition are that Smt. Rizwana Begum was married to Sabir on 2-3-82 according to the provisions of Muslim Law and out of this wedlock the petitioner was born. THE respondent, his mother, father and sisters are all very greedy persons and were not satisfied with the dowry that Smt. Rizwana Begum brought. She was, therefore, constantly harassed and tonured. On 11-4-85 her signatures were obtained on a stamp paper on false pretext On 20-4-85 she was taken to Sirathu Tehsil and some document was prepared on that stamp paper and she was asked to sign on it and then she was brought to Sirathu Railway Station where her husband, the respondent, asked her go to her father's place at Allahabad. She was forced to go alongwith the petitioner's sister who was only about one year old and since then she is living with her father. He, however, was not allowed to go with her inspite of her requests. Since then he is living with the father. He is of tender age and has been deprived of the mother's love and affection and is being illegally detained by the father at his house where he is being brutally treated and there is apprehension of his life. No steps have been taken to educate him and thus his future is in dark. Under these circumstances the mother claims on behalf of the minor the custody of the child. Counter affidavit has been filed on behalf of the respondent and the learned counsel for the petitioner gave out that he does not want to file any rejoinder affidavit and the petition may be heard and disposed of on merit. Under these circumstances, both the learned counsel were heard. 3. Counter affidavit has been filed on behalf of the respondent and the learned counsel for the petitioner gave out that he does not want to file any rejoinder affidavit and the petition may be heard and disposed of on merit. Under these circumstances, both the learned counsel were heard. 3. IN the Counter affidavit all other facts relating to the marriage of Smt. Rizwana begum with Sabir Ali are admitted but it is contended that the allegations regarding harassment and torture and also about Smt. Rizwana Begum being brought to Sirathu and preparation of a stamp paper and document are all false On the contrary, the story that is set up is that the fa her of Smt. Rizwana Begum was insistent that Sabir Ali should leave his parent's house and come and stay at Allahabad. He did not agree, therefore, Smt. Rizwana Begum of her own accord and free will came to Allahabad along with her father Mohammad Fazil and willingly left the petitioner with her grant-mother Smt. Rasso. The child is very mucti attached to this lady and, therefore, he also did not go with the mother. It is contended that Sabir Ali is carrying on cultivation in village Jagannath Pur, Tehsil Sirathu. He lives there with his old father and mother and the cultivation is the only source of his livelihood, It is further contended that the father of Smt. Rizwana and her brothers are all of criminal type. It is also contended that Smt. Rizwana in collusion with her father started proceedings under Sections 323 and 504 IPC against her husband, Sabir Ali, and that the case ended in acquittal of Sabir Ali on 30 5-86. IN para 8 it is contended that the petitioner is admitted in Primary Pathshala, Udihim Buzurg, Tehsil Sirathu, which is hardly half a furlong from the village of Sabir Ali and where more than a dozen students from the village go to study. The petitioner is attending his class there regularly. He is being properly nourished and nurtured and is looked after by Sabii Ali. IN para 11 it is contended that the habeas corpus petition was not maintainable as the provisions of the Guardian and Wards Act could be taken recourse to. The petitioner is attending his class there regularly. He is being properly nourished and nurtured and is looked after by Sabii Ali. IN para 11 it is contended that the habeas corpus petition was not maintainable as the provisions of the Guardian and Wards Act could be taken recourse to. IN paragraph no, 15 of the counter affidavit, it is said that Smt. Rizwana Begum holds a Pakistani Passport and she wants to go to Pakistan after taking custody of the petitioner where she will settle permanently and remarry with the son of her uncle. 4. THE first point to be determined is about the legal maintainability of the petition inspite of the fact that ah alternative remedy under the Guardian and Wards Act is available and can be said to be adequate and efficacious. A similar matter came up for decision before a Full Bench of this Court at Lucknow in the matter of Iqbal Ahmad v. Shaban Ali Khan, 1985 (11) ALR 526. In that case it has been held that even though disputed question of fact may now be involved, under Article 226 of the Constitution of India it is always open to decide the issues of fact which can be determined from the material on record and even though remedy under the Guardian and Wards Act may be available, the writ petition would still be maintainable. 5. THE point to be considered is about the welfare of the child. He is a four years old boy. It was not thought necessary by this Court to call him and to try to ascertain his wish because such a small child would be unable to give his proper opinion and might be subjected to tutoring. According to Fatwai Alamgiri Vol. I page 728 "THE mother is, of all the persons best entitled to the custody of her infant children". Amir Ali in Mohammendan Law Vol. II at page 304 has observed that mother can on no account give up her right of 'Hizanat' for even if she were to obtain a Khula in lieu of her abandonment of her right to her child custody. Khula will be valid and she will retain right of Hizanat. According to Mulla (Principles of Mohammedan Law Para 352 (18th Edition), the mother is entitled to the custody of her male child until he has completed the age of seven years. 6. Khula will be valid and she will retain right of Hizanat. According to Mulla (Principles of Mohammedan Law Para 352 (18th Edition), the mother is entitled to the custody of her male child until he has completed the age of seven years. 6. THERE is thus no doubt that according to the dictates of Mohammedan Law the custody of a male child upto the age of 7 years should be with the mother. It is her entitlement but if for any reason the child is living with the father, father's custody cannot be said to be illegal or unlawful. The question to be determined would be whether it would be in the interest of waifare of the child to ensure that his custody is restored to the mother or should he be allowed to remain with the father. The contention set forth by the mother that the child is not being educated and is being ill-treated and under nourished has been completely disputed and denied in the counter affidavit that has been filed. On the contrary it is shown that he is studying in a Primary School which is very close to the house of the father and where other children from the village go. No rejoinder affidavit to deny this fact has been filed, financial condition of the father appears to be sound because he is carrying on cultivation. On the contrary the mother has not shown as to what is her source of income independently of her father and what even her father earns and how she will be able to keep the child in a financially sound condition. The allegation that her father and brothers are criminal by nature has not been controverted. It is also not disputed that the grand-mother of the child is alive and the child is very much attached to her. Lastly, there is an allegation, which is also not controverted, that the mother holds a Pakistani Passport and intends to leave for Pakistan as soon as she gets the custody of the child and will marry her cousin there. This being the situation, the balance of welfare tilts more in favour of the father than in favour of the mother. Lastly, there is an allegation, which is also not controverted, that the mother holds a Pakistani Passport and intends to leave for Pakistan as soon as she gets the custody of the child and will marry her cousin there. This being the situation, the balance of welfare tilts more in favour of the father than in favour of the mother. The child has crossed the age of breast feeding and from the point of view of his education and development, it is obviously in his interest that he should continue to reside with the father and should not be asked to go with the mother because it will result in disconnection of his studies and there will be sudden psychological change also in the situation and environment. THERE is nothing on record to show that the mother would be in a better position to maintain the child than the father. Under these circumstances, this petition is dismissed. There will be no order as to costs. Petition dismissed.