S. P. SRIVASTAVA, J. The petitioner, father of the minor child Fareed Ahmad, aged about eight years has approached this Court in its equity juris diction under Article 226 of the Constitution of India praying for the award of the custody of his minor son to him who is at present in the custody of his mother who had been divorced within 6 days as the birth of the child. 2. The change of custody sought for by the petitioner has been vehe mently opposed by the respondent mother of the child. 3. I have heard Shri K. L. Gover, learned Counsel for the petitioner and Shri S. M. A. Kazmi, learned Counsel representing the mother, Respon dent No. 1 and have perused the record. 4. The minor, Fareed Ahmad was born on 24th September, 1986 at Hamirpur. The petitioner asserts that he was married to Farhat Sultana Begum in the year 1985 according to the Islamic rights and soon after the birth of Fareed Ahmad he had divorced Smt. Farhat Sultana on 30th Septem ber, 1986 and since the divorce, both are living separately. It is alleged that the petitioner is living at Kanpur while Smt. Farhat Sultana at Kabarai in the district of Hamirpur. 5. The petitioner claims that while the minor son, Fareed Ahmad was in his custody and perusing his studies in the Oxford Public School, Arya Nagar, Kanpur from July, 1992, he was taken away surreptitiously from the school by Smt. Farhat Sultana Begum and in spite of his best efforts, the minor has not been able to get any education and is four years behind the schedule. It has been asserted that again in April, 1994 after several efforts Smt. Farhat Sultana returned the boy to the petitioner who was got admitted in Oxford Public School, Kakadeo, Kanpur but on 2nd July, 1994 Smt. Farhat Sultana came to Kanpur and managed to take away the boy from the custody of the petitioner without his consent and took him away to Kabarai, Hamirpur. The petitioner further asserts that in spite of repeated attempts and spending thus-sands of rupees he has not been able to give proper education to the child which has been kept away from him and taken away repeatedly by Smt. Farhat Sultana depriving him of his studies. The petitioner further asserts that in spite of repeated attempts and spending thus-sands of rupees he has not been able to give proper education to the child which has been kept away from him and taken away repeatedly by Smt. Farhat Sultana depriving him of his studies. It is also claimed that the boy has not received any education though he has attained the age of 7 years. It is further alleged that village Kabarai in the district Hamirpur is a backward area and there is no facility of education. The petitioner further asserts that if the boy remains in the custody of his mother, he will be deprived of education and the chances of becoming a good citizen of the country. 6. It is also alleged that Smt. Farhat Sultana has no financial means to give education to the child and future of the child will be ruined for ever, The petitioner claims that Farhat Sultana has a female child from her earlier hus band, who is living with her. It is asserted that the said female child has remained illiterate. It is further asserted that Fareed Ahmad is the only son of the petitioner and he genuinely desires to give him education for which he has the means as he is engaged in business at Kanpur. It is also asserted that the custody of Fareed Ahmad with his mother is wholly illegal and against the law and against the interest of the minor and his welfare. The assertion is that the minor has been illegally detained by Farhat Sultana who has no right to keep him in her custody. 7. From the receipt, dated 3-7-1992 issued by the Oxford Preparatory School, Arya Nagar, Kanpur which has been filed along with the petition, it appears that Fareed Ahmad was admitted in K. G. Class. From the other receipt, dated 17-5-1994 issued by Oxford Public School which has been filed along with the petition, it appears that on 17-5-1994 the minor Fareed Ahmad was admitted in prep. class. 8. The mother, respondent No. 1 has denied the allegations made in the writ petition. Various allegations have been made by the mother against the petitioner. From the other receipt, dated 17-5-1994 issued by Oxford Public School which has been filed along with the petition, it appears that on 17-5-1994 the minor Fareed Ahmad was admitted in prep. class. 8. The mother, respondent No. 1 has denied the allegations made in the writ petition. Various allegations have been made by the mother against the petitioner. She asserted that the petitioner had married her representing himself to be a bachelor without disclosing that he was already married and had two daughters, It is also asserted that she was humiliated, harassed and tortured Toy the petitioner and was divorced within six days of the delivery of the child. It is claimed that the petitioner had created pathetic and miserable circumstances, but since she wanted to live with dignity and honour and want ed further to give education to her child, she joined Saint Amtuls Public School at Nainital and got the minor son admitted in Oakwood School, Naini tal. The child remained at Nainital during the period of the employment of the respondent No. 1 there. Thereafter his studies were continued at Lucknow where he was admitted in Khurram Nagar Montessori School. 9. The mother asserts that she has an independent source of income. She has a mining lease in her favour which provides a steady source of income to her. She has asserted that she has sufficient income to maintain herself and her child. Apart from mining business, she has also a rental income of Rs. 1,000 per month. She has also asserted that the petitioner has not divorced his first wife and has two daughters from his first wife. She also asserted that the petitioner is suffering from very huge economical stress and has no convenient source of livelihood It is also claimed that he has already declared himself to be insolvent. 10. It is not disputed that she is living separately from the petitioner since the divorce. It has also been asserted that during the last 4 years, not a single penny had been paid by the petitioner for the maintenance of the child. She claimed that the daughter from her first husband was given the best education. She is about 16 years old and is shortly going abroad along with her father for higher studies. She claimed that the petitioner has been a failure in the field of business. She claimed that the daughter from her first husband was given the best education. She is about 16 years old and is shortly going abroad along with her father for higher studies. She claimed that the petitioner has been a failure in the field of business. She claimed that the present writ petition has been filed with the aim to harass and humiliate her. It is also asserted that the mother of the petitioner after the death of her husband in curious circum stances married Dr. A. U. Khan who resides at Nainital. The petitioners sister, Kaneez was divorced only within few months of her marriage. The res pondent No. 1 claimed that two daughters of the petitioner from his first wife had also been badly tortured by him. She has given details of her family members showing that she belongs to a well to do family. She asserts that the petitioner can never provide respectful, proper and healthy atmosphere which are pre-requisite factors for bringing up a child whereas her family is well equipped to cater to all kinds of the need of the child as well as is competent to provide a decent and respectful atmosphere for bringing up the child. 11. The allegations made by the respondent No. 1 have been controverter by the petitioner. He claimed that his first wife had taken divorce from him and is living in Bombay and is employed in top executive business house. The petitioner has levelled several allegations against the conduct of the mother of the child. The reason for divorce disclosed is the mental incapa bility between the parties and bad habits of flirting and rudeness on the part of the respondent No. 1. The petitioner asserts that the expenses incurred on the education of the boy at Nainital were borne by him. He asserts that the minor has not been able to get any worthwhile education and no knowledge of Islamic studies i. e. Quoran Sharif. The petitioner claims that the future of the child will be miserable if he continues to remain with the respondent No. 1. The petitioner claimed that he is Managing Director of Hindustan Tanne ries Pvt. Ltd. , having assets of worth two crores of rupees. He further claimed that as a Managing Director he is getting salary of Rs. 5,000 per month with other perks such as conveyance allowances, electricity charges etc. The petitioner claimed that he is Managing Director of Hindustan Tanne ries Pvt. Ltd. , having assets of worth two crores of rupees. He further claimed that as a Managing Director he is getting salary of Rs. 5,000 per month with other perks such as conveyance allowances, electricity charges etc. An order passed in the proceedings under the Income Tax Act, a true copy of which has been filed as Annexure SRA-3 by the petitioner shows that he had disclosed his gross income of Rs. 48000 for the year ending 30-6-1993. He claimed that half share of his residential building is worth about rupees one crore. He claimed that he has been visiting various countries for business purposes. 12. The affidavits exchanged between the parties contain allegations against each other. The father has accused the mother and the mother has accused the father indulging in character assassination of each other. However, the fact remains that the relations between the father and the mother became strained long ago and now the tussle between the separated parents of their only male child is to have his custody with them. 13. In the instant case there is no dispute that the contesting parties are governed by the Hanfi Mohammedan Law. Under the Muslim Personal Law, the responsibilities and the obligations relating to minors include physical custody (Tahwil) and up-bringing (Tarbiyat) or (Parwarish) commonly known as Wilayat-E-Tarbiyat and the over-all surveillance over the person of the minor commonly known as Wilayat-E-Nafs. Wilayat-E-Nafs include the power to take all important decisions (other than those relating to marriage and proper ty) on behalf of the minor and the obligation to maintain the minor and fulfil all his genuine needs and requirement besides all kinds of parental surveillance over the activities of the minor. Under the Mohammedan Personal Law Wilayat-E-Nafs is from the beginning till the end held primarily by childs father while it is not so with hizanat which is primarily with the mother till the minor attains the age of seven years if he is a Sunni. 14. However, it cannot go unnoticed that the law either personal or general never gives an absolute right to custody and this right may be lost in circumstances recognised under the law. 14. However, it cannot go unnoticed that the law either personal or general never gives an absolute right to custody and this right may be lost in circumstances recognised under the law. It is, therefore, obvious that the law only recognises a prima fade claim for Wilayat or guardianship and it must be borne in mind before turning to the consideration about the welfare of the child for prima facie right to custody. The welfare of the minor may be best safeguarded if the minor is in the guardianship of a person who can dis charge the obligations regarding Tarbiyat and education in a better manner. A natural guardian may also on account of his conduct may cease to be treated as a natural guardian and may not be entitled to the custody of the minor if he is found otherwise unfit. In such a case the father may lose his prima facie, right of Wilayat if the fathers principles manifest themselves in a conduct which is looked upon as vicious or immoral or unbecoming of a father which may be indicative of the fact that he is likely to bring up his child on the same principle and the Court may interfere to change the custody of the minor. While considering the question as to whether Wilayat-E-Nafs or Wilayat-E- Tarbiyat of a minor requires a change the discretion in this regard has to be exercised taking into consideration the Childs ordinary comfort, contentment, intellectual, moral and physical development, his health education, general maintenance and the favorable surroundings. It may also be noticed that if the minor is old enough to form an intelligent preference the Court may consider the preference and should not normally force a guardian against the wish of the minor unless the welfare of the minor appears to be in peril. 15. This Court in its decision rendered by a Division Bench in the case of Mst. Haidari Begum v. Jawwad Ali Shah, reported in AIR 1934 All 722 (2) had observed that where the father and mother are living apart and where each of them claims to have the custody of the child the main conside ration is what would be more conducive to the childs welfare that is whether the child would be better looked after by the mother or the father. The Apex Court in its decision in the case of Dr. The Apex Court in its decision in the case of Dr. (Mrs.) Veena Kapoor v. Varinder Kumar Kapoor, reported in AIR 1982 SC 792 , had observed that it is well-settled that in matters concerning the custody of minor children the paramount considera tion is the welfare of the minor and not the rights of this or that particular party. 16. The petitioners mainstay of his case is based on his paternal right to the custody of the child. He being the father and the natural guardian of the child asserts that he has an unlimited right to claim back the custody of the minor from his mother. 17. The learned Counsel for the contesting respondent has vehemently urged that in the present case, taking into consideration the allegations and the counter allegations levelled by the father and the mother against each other and dispute having been raised in regard to their character and conduct as well as financial status, the parties may be relegated to the alternative remedy provided for under the Guardians and Wards Act for recovering the custody of the child and in the circumstances brought on record no interference is called for in the present proceedings. 18. I have given my anxious consideration to the above submission. The ratio of the decision in the case of Gohar Behum v. Suggi alias Nazma Begum and others, decided by the Honble Supreme Court reported in AIR 1960 SC 93 , is clearly attracted even to the proceedings under Article 226 of the Constitution of India. While it is true that the petitioner has a clear right to proceed under the provisions of the Guardians and Wards Act for recover ing the custody of the child yet his right to have an order for the custody of the child in the present proceedings cannot be denied. I am clearly of the opinion that where conflicting claims for the custody of the same as individual are rais ed such claims may be enquired into and the custody awarded to the proper person even in the proceedings under Article 226 of the Constitution of India if sufficient ground is made out calling for the intervention of equity. The High Court in custodial cases relating to minors exercises an inherent jurisdiction as distinguished from any statutory jurisdiction conformed by any particular provision in any special statute. The High Court in custodial cases relating to minors exercises an inherent jurisdiction as distinguished from any statutory jurisdiction conformed by any particular provision in any special statute. The jurisdiction of this Court rests on its inherent power. This Court in the cases of child custody exercises a jurisdic tion which is of equitable nature and while exercising such a jurisdiction this Court is not bound by any mere legal right of a parent. This childs welfare is the supreme consideration irrespective of the rights of the contesting parents, Although natural rights of the parents may be taken into account. Further the proceedings seeking the remedy of a writ of Habeas Corpus as applicable to the minors are of summary nature and its primary object is to determine in whose custody the best interest of the child will probably be advanced. The right of the father to claim the custody of the minor child without reference to the welfare of the minor child is not acceptable to law. 19. It may be emphasised that when a writ of Habeas Corpus is prayed for, as in the present case, the question to be determined is not of illegal deten tion but of proper custody. In such matters the Court is always careful and cautious. If there is any neglected or exploited child and it is found to be a genuine case for rescue operations mandated by the Constitution, in proper cases, such a writ may issue. Consequently the writ of Habeas Corpus can legitimately be issued in child custody cases by the High Court while deciding the conflicting claims and this Court can award custody while exercising its inherent writ jurisdiction which is not fettered by any particular provision in any special statute. 20. It is in the aforesaid background that the question in regard to the change of the custody of the minor child prayed for by the petitioner has to be considered. It is contended that the father is in a better position to look after the childs welfare and education because he is in a good financial posi tion whereas the mother has small financial resources. It has, however, not been shown that the mother is too poor to be able to make suitable provision for the child. It is contended that the father is in a better position to look after the childs welfare and education because he is in a good financial posi tion whereas the mother has small financial resources. It has, however, not been shown that the mother is too poor to be able to make suitable provision for the child. On the own showing of the petitioner who is of about 50 years of age and his income in the year ending 30-6-1993 was about Rs. 4000 per month. The mother aged about 35 years has shown that she has a rental income of Rs. 1000 per month and from mining operations she has consider able income as she asserts that the amount of royalty to be paid by her comes to Rs. 33,000 per year minimum. This is indicated from the terms of the lease-deed brought on record which is for an area of 5. 50 acres. From the materials on the record it is apparent that the petitioner had divorced his wife, the mother of the minor child when the child was only six days old. Under the Muslim Personal Law the father is obliged to provide maintenance for the child even when the child continues to be in the Hizanat of his divorced mother. The primary liability to maintain the child belongs to the father and in case the mother has to maintain him in his place she has to be reimbursed by the father which right is recognised by the Muslim Personal Law. There is nothing on the record to show that the petitioner ever fulfilled the above obligation. In para 8 of the counter-affidavit it has been asserted that the solitary courtesy shown by the petitioner in this regard was when he paid the expenses in regard to the admission of the minor in Oak-Wood School, Nainital. The assertion made in para 8 of the counter-affidavit as not denied in the rejoinder affidavit wherein the only thing asserted is that at time of admission of the child in that School a higher amount was paid. From the materials on record it appears that throughout the period of Hizanat and even upto date the duties in regard to Wilayat-E-Tarbiyat and Wilayat-E-Nafs were being dis charged by the mo her and she had to bear the requisite expenses incurred in this regard. From the materials on record it appears that throughout the period of Hizanat and even upto date the duties in regard to Wilayat-E-Tarbiyat and Wilayat-E-Nafs were being dis charged by the mo her and she had to bear the requisite expenses incurred in this regard. From the materials on record it also appears that the mother is a well educated person and has the capability to earn a decent livelihood and look after the child. 21. Farced Ahmad the alleged detenu was produced by the mother pursuant to the order of the Court in Chambers in the presence of the counsel for the parties. He appeared to be quite intelligent. He is a left hander and could write his name in capital letters in English. He said that he has not read Urdu. He had expressed a desire that he wants to continue to reside with his mother. 22. Considering the entire facts and circumstances as brought on record, I do not find that Fareed Ahmad the alleged detenu can be put in the category of neglected child and any genuine case is made out for a rescue-operation justifying the alteration in the custody of the minor while exercising the extra ordinary inherent equitable jurisdiction of this Court. 23. The writ petition is accordingly dismissed but without prejudice to the right of the petitioner to claim and recover the custody of the minor child in appropriate proceedings under the provisions of the Guardians and Wards Act. 24. There shall, however, be no order as to costs. Petition dismissed. .