ORDER Dr. T.N. Singh, J. -- 1. On a complaint made by mother that her son Asgar was illegally confined by respondents Akbar Khan and Sakko Bai, her petition was registered as a habeas corpus petition and rule nisi was issued directing the respondents to produce the child in Court and also show cause in regard to the complaint made. Although petitioner admitted that the respondents were her father-in-law and mother-in-law, or in other words, child's paternal grand-parents, they were presented in dark colour by the additional allegation that they were interested in some money deposited in the Workmen's Compensation Court in the name of the child and had, therefore, detained the child forcibly. 2. Both respondents appeared on the date fixed and produced the child in Court. They were furnished with a copy of the petition and were granted time to file return. The petitioner being unrepresented, at our request, Shri R.D. Jain, volunteered to assist us as amicus curiae and we heard him also in this matter. 3. On the basis of the materials brought on record with the return, we have found it possible to reach the conclusion that no case is made out to transfer custody of the child to the petitioner by issuance of a writ of habeas corpus. We proceed to state our reasons for' the conclusion. 4. Facts which are indisputable, are projected in Annexures D.1 and D.2 of the return. An award was made as per Annexure D.2 on 31.1.1986 by Workmen's Compensation Court, Gwalior, granting compensation for the death of Mustafa, petitioner's husband and child's father, who was killed in a motor accident on 5.5.1985. Under that award a total sum of Rs.74,882.80 p. was held payable as compensation to the claimants. That was apportioned between the widow (petitioner), deceased's two children (son, Asgar and daughter, Bitto) and his parents (respondents). An outright payment of Rs.15,000/- was made to the petitioner and for the balance of Rs.25,000/- FDR for 5 years was taken out. Annual interest accruing on that amount was made payable to her. A sum of Rs.20,000/- was awarded to Asgar, but for that FDR for ten years was taken and annual interest accruing thereof was made payable without, unfortunately, making it clear as to whom that shall be payable. Annual interest accruing on that amount was made payable to her. A sum of Rs.20,000/- was awarded to Asgar, but for that FDR for ten years was taken and annual interest accruing thereof was made payable without, unfortunately, making it clear as to whom that shall be payable. It appears to us that the slip in the award just noted is the real bone of contention between the parties. Because, respondents do not deny that the girl is with mother and, therefore, interest accruing on Rs.10,000/- awarded to her and deposited for ten years in fixed deposit can be claimed by the petitioner. Be it mentioned further that the two respondents were also granted compensation of Rs.7,500/- each and outright payment was made of that amount. 5. What has come to light in Annexure D.1 is also revealing and damaging indeed to petitioner's case. That is a judicial order passed by Judicial Magistrate, First Class, Gwalior on 16.11.1989 in Cr. Original Case No. 625/89. A complaint was lodged by the petitioner against the two respondents under section 363, IPC. That has been dismissed, holding that no offence was made out. We read a clear and categorical finding in that order in favour of the respondents that the child Asgar was aged about ten years and had all along been living with his paternal grant parents and doing so of his free will and volition and that there was no reason to presume that the child was not telling the truth or that he was forcibly detained. It is indeed respondents' case also, stated in the return, that immediately after her husband's death, the petitioner left the matrimonial home and took away her daughter only as her son Asgar could not be cajoled to accompany her. They have also stated that Asgar was receiving education and in that regard, certificate, Annexure D.3 granted by the Head, Master of Government Primary School, Panihar, was filed with the return to rebut the allegation of the petitioner that the child was exploited and was denied education. Another significant statement made ill the return deserves to be noted as that is also crucial. It is stated that the petitioner having "bluffed" the Labour Court (Workmen's Compensation Court) has obtained from that Court payment of annual interest payable to Asgar by stating that the child was living with her. Another significant statement made ill the return deserves to be noted as that is also crucial. It is stated that the petitioner having "bluffed" the Labour Court (Workmen's Compensation Court) has obtained from that Court payment of annual interest payable to Asgar by stating that the child was living with her. It is their case that the petitioner approached this Court with an ulterior motive to serve her only own interest. Unless she is able to obtain Asgar's custody she will have problem now to get payment of annual interest in future due payable under the award because of the Judicial finding against her in Amlexure D.1. 6. Counsel on both sides have addressed us on law and Shri Afsar has urged strenuously that custody of the child cannot be given to petitioner as child is now aged more than 7 years and her right under Mahomedan Law is now lost. Counsel has relied on paragraphs 352, 355 and 357 of Mulla's Mahomedan Law. It is true, for a male child's custody, one who is aged more than seven years, the nearest paternal grand-father has that right, in father's absence. But the position in law is also well-settled that the question of custody can be examined in a habeas corpus petition de hors that of guardianship. This Court's Bench decision Mumtaz Begum ( 1986 JLJ 527 ) is cited by Shri R.D. Jain in support of his contention. That was a case in which the child was aged about four years and the custody was given to the mother as it was found that mother was not disqualified by not residing with the husband who has taken a third wife and had a child from her. It was found in that case that the tender age of the child and the circumstances of his father were adverse to child's custody remaining with him as the child was in dire need of motherly affection. If the "welfare" of the child must prevail as the paramount consideration, to determine the question of "custody", it was held, the mother cannot be denied custody of the child of the tender age who had to be brought in a congenial atmosphere of love and affection, outside an environment which was unsuited to his mental growth and development. If the "welfare" of the child must prevail as the paramount consideration, to determine the question of "custody", it was held, the mother cannot be denied custody of the child of the tender age who had to be brought in a congenial atmosphere of love and affection, outside an environment which was unsuited to his mental growth and development. This Court has occasion to discuss law stated in Gohar Begum ( AIR 1960 SC 93 ), Veena Kapoor ( AIR 1982 SC 792 ) as. also in Mt. Siddiqumzisa (AIR 1932 All 215), Per Suleman, C.J. Be it also mentioned that the question of guardianship of the child was left open in that case and parties were held not debarred from pursuing appropriate remedy in that regard at appropriate time. 7. Our attention is also drawn by Shri Jain to some other decisions. The case of Rosy Jacob ( AIR 1973 SC 2090 ), arose out of an order passed under section 41 of Divorce Act in respect of the custody of two children. In that case also, it was held that parties were not deprived of their right to agitate the question under section 25 of the Guardians and Wards Act, for short, G.W. Act, but the order concerning custody of a daughter aged 13 years and her younger brother to their mother passed by the trial Judge was restored upsetting, the Judgment of Letters Patent Bench. The father's fitness, it was held, could not be overriding consideration and the welfare of the minor children had to be determined having regard to all relevant facts such as their health, maintenance etc. The decision of a learned Single Judge .of this Court in Kalimunnisa ( 1977 JLJ 35 ), cited by Shri J., is also besides the point. That was an appeal under G.W. Act and in that case, the settled law was reiterated that with regard to the questions to be determined under sections 17 and 25 of the Act, the position obtaining under the Mohammedan Law was not decisive. Mehboob Khan's case [1977(2) MPWN 79] is also a decision of a learned Single Judge of this Court rendered in appeal under G.W. Act. What considerations, facts and circumstances; are relevant for determining "welfare" of a child on the question of his guardianship were enumerated in that case. Mehboob Khan's case [1977(2) MPWN 79] is also a decision of a learned Single Judge of this Court rendered in appeal under G.W. Act. What considerations, facts and circumstances; are relevant for determining "welfare" of a child on the question of his guardianship were enumerated in that case. We do not like to dilate much on that aspect as the question of guardianship is not to be considered in this matter. 8. Although the Bench seized with the question of custody in Pota's case ( 1986 JLJ 161 ) had to consider that from a different factual perspective, the holding therein applies squarely to the instant case. It was held that while granting the writ of habeas corpus the Court has to satisfy itself that custody of the child was being entrusted to a "proper person". It was observed that although writ of habeas corpus was a "writ of right", it was not a "writ of course" and power could be exercised only in a clear case in favour of such a petitioner whose conduct was not tainted. Respondent in that case was held to be the "proper person" to retain custody of the child because he had not illegally or surreptitiously removed the child from petitioner's custody. For that view, reliance was placed on Mohd. Ikram Hussain ( AIR 1964 SC 1625 ) et. al, but we would like to refer also to the decision in the case of Dushyant Somal ( AIR 1981 SC 1026 ). In that later case, father's defence and his denial to produce the child in obedience to High Court's directive in writ petition was found offensive and he was punished for committing contempt despite the fact that the mother had not led any evidence in the prosecution launched against him under section 363, IPC charging him with snatching away the child from her custody. 9. Fundamental rights are immutable but equally true and important is the fact that in a writ Court, constitutional equity is administered on established or admitted facts. When a writ of habeas corpus is prayed and the question to be determined is not of "illegal detention", but of "proper custody", the Court is always careful, cautious and circumspect. It can legitimately probe petitioner's motive and conduct. When a writ of habeas corpus is prayed and the question to be determined is not of "illegal detention", but of "proper custody", the Court is always careful, cautious and circumspect. It can legitimately probe petitioner's motive and conduct. If there is any neglected or exploited child or damsel in distress and if it is a genuine case for rescue operation mandated by constitutional imperatives, writ shall issue a la Mumtaz Begum (supra). This duty has to be discharged to achieve the salutary object underlying Article 21 of the constitution. The writ Court cannot be used as a tool for the life and liberty of any person to be pawned or bartered in any manner. The petitioner will not be heard saying, give me the child as I badly need him for my support. A writ of habeas corpus issues only against violators of human rights to protect and promote the rights and interests of the mute and the weak. It is, therefore, said that the writ does not issue as a matter "of course" because that may result in promoting somebody else's interest at the cost of the deserving one's. 10. What is clearly established, as earlier alluded, is that the instant petitioner has not been able to satisfy us that her claim for custody of her son is based on true and genuine love and affection for the child. She has also not been able to satisfy us by any material on record that welfare of the child shall be best sub-served if the child is entrusted to her custody. The only statement which she has made is that she has remained unmarried for the last four years and she has no intention to remarry. Where she is living, how she is living, who is supporting her and the daughter living with her? These are important facts which remain shrouded in darkness. If she is herself destituted and is dependent for her survival on the pittance of annual interest receivable in regard to her own and her daughter's FDRs, the fate and future of the son can be well imagined. The very fact that she took no steps for claiming custody of her son for more than four years, till she initiated proceedings culminating in the order dated 16.11.1989 (Annexure D.1), speaks vocally of her purpose, intention and motive. 11. The very fact that she took no steps for claiming custody of her son for more than four years, till she initiated proceedings culminating in the order dated 16.11.1989 (Annexure D.1), speaks vocally of her purpose, intention and motive. 11. It has appeared to us that she is not really and genuinely interested in the "welfare" of the child. On the other hand, she is interested only in securing her right to the receipt of annual interest payable to her son during his minority. We must accordingly reluctantly conclude that she is unfit to be regarded as the "proper person" to whom the custody of the child should be restored by detaching it from safe and friendly society of his paternal grant-parents. We are of the view that constitutional equity does not favour removal of the child Asgar from their custody at this late stage as they have been providing him for the last five years protective care and benevolent company. It is not possible for us, on scanty materials available, to reach the conclusion that his separated mother is well-placed and adequately equipped to look-after the child's welfare in a better way. Nothing has come on record against the two respondents and indeed the allegation that they were not looking after the child's education has been effectively rebutted by Certificate, Annexure D.3. 12. For all the reasons aforesaid, we find no merit in this petition and it is dismissed. However, we make it clear that parties may take appropriate proceedings under G.W. Act as not only proper and suitable guardian for the person and property of the child may be appointed thereunder by the Court of competent jurisdiction on evidence adduced by parties, but in those proceedings, interim order may be passed under section 12 to settle entitlement of the eligible person to receive the annual interest accruing from the FDR take out under the award in the name of the child Asgar.