Chandrasekhara Sastry, J.- The facts of this petition under section 491 of the Code of Criminal Procedure are rather unusual. There are two petitioners. The 1st respondent is the mother-in-law of the 1st petitioner, Y. Narasimha Rao. The 2nd respondent is the State of Andhra Pradesh, which is neither a necessary nor a proper party to this petition. In this petition it is prayed that this Court may issue a direction in the nature of habeas corpus for the production of a minor girl Yadla Varalakshmi, who is in the custody of the 1st respondent, before the Court and set her at large by handing over the girl to the petitioners. The material allegations in the affidavit of Y. Narasimharao filed in support of the petition are shortly as follows and the affidavit is filed on behalf of the 2nd petitioner also. The minor child is about 6 to 7 years old. It is alleged in the affidavit that the 1st petitioner married one Padmavathi, the daughter of the 1st respondent who has originally a resident of Goddapolem (East Godavari District) in the year 1958 at Premnagar, Hyderabad. After the marriage the 1st petitioner and his wife lived at Vittal Adi, Narayanaguda and the daughter who is the minor in question was born to them in the year 1959 and was named Varalakshmi. While cooking food on a kerosene stove the clothes of Padmavathi caught fire and she received serious burns with the result she died at the Osmania Hospital, Hyderabad. It is alleged in the affidavit that the 1st petitioner, the husband of Padmavathi, tried to rescue her and while doing so, received burns and he was also admitted in the Osmania. Hospital and was an inpatient therein for about two months. During the period 1st petitioner was in hospital, his neighbours and friends used to bring his daughter to him. She was about 1½ years old at that time. The 1st respondent who is the mother-in-law of the 1st petitioner, came to see in the hospital and pretending to take interest in the child asked for the 1st petitioner’s permission to keep the child with her temporarily on the ground that he had no female member in his house to look after the child to which the 1st petitioner agreed. After he was discharged from the hospitalhe asked for the return of the child to him but the child was concealed by the 1st respondent and evasive answers were given. Then the 1st petitioner reported the matter at the Police Station and the 1st respondent requested the 1st petitioner to keep the child with her till he married again. On the advice of the Station House Officer, he agreed to her suggestion. After sometime in 1961 the 1st respondent went to Kakinada with the child and she came into contact with the 2nd petitioner, Pachipulusu Venkateswara Rao, a Vysya, who carries on business in ghee and who is childless. It is alleged that the 1st respondent sold the minor child about 1½ years ago to the 2nd petitioner for Rs. 500 and gave away the child to him to be brought up by him as his own child and thus abandoned the child after having the custody for about two months. It is asserted in the affidavit that the 1st respondent represented to the 2nd petitioner that both the father (1st petitioner) and the mother of the child died in the hospital on account of burns and the child was an orphan. We will consider presently whether this allegation is true. The 1st petitioner married again in 1962 and went to the 1st respondent and asked for the custody of the child. But the 1st respondent told him that the child had died due to shock on account of the loss of her mother. Believing the story the 1st petitioner kept quiet. We will presently consider whether this allegation is true. It is next alleged that the 2nd petitioner shifted to Hyderabad in February, 1966 and got the child admitted in Holy Mary Convent, Saifabad. The 2nd petitioner was taking care of the child and was bringing up the child as his own. The 1st respondent after coming to know that the 2nd petitioner was residing at Hyderabad itself, started demanding money or return of the child. The 2nd petitioner then made enquires and found out that the father of the girl (the 1st petitioner) is alive and after finding out his address met him along with the child and narrated the story as to how he came into custody of the child and requested the 1st petitioner to permit him to bring up the child. The 2nd petitioner then made enquires and found out that the father of the girl (the 1st petitioner) is alive and after finding out his address met him along with the child and narrated the story as to how he came into custody of the child and requested the 1st petitioner to permit him to bring up the child. The 1st petitioner agreed to the request; it is added that the child was coming to the 1st petitioner daily and he was also taking care of her. The next allegation is that on 11th May, 1966, the 1st respondent went to the house of the 2nd petitioner and demanded money or return of the child and picked up a quarrel. The 2nd petitioner reported the matter to the Police and the 1st respondent was charge-sheeted in Petty Case No. 252 of 1966 and was sentenced to pay a fine of Rs. 3 on 13th May, 1966, by the Third City Magistrate, Hyderabad. In paragraph 11 of the affidavit it is stated that the 2nd petitioner informed the 1st petitioner that on 5th July, 1966 the Police came to his house alleging that a complaint was given by the 1st respondent and compelled him to go to the Police Station along with the child and that after beating him there, forcibly removed the child and gave the custody of the child to the 1st respondent, even though the child was crying and unwilling to leave the 2nd petitioner. In paragraph 12 of the affidavit it is alleged that the petitioners apprehend grave and imminent danger to the life of the child if she is continued in the custody of the 1st respondent. The child was detained in the 1st respondent’s house and was not allowed to move out. The 1st petitioner learnt that the 1st respondent and her son were beating the child every day and the child is kept in prolonged solitary confinement in the house of the 1st respondent. In paragraph 13 it is further alleged that the 1st respondent is a terrible woman and does not stop short of doing anything and she is also indulging in immoral traffic. The 1st petitioner reported the matter to the Police bringing all facts to their notice, but no action was taken by the Police so far. In paragraph 13 it is further alleged that the 1st respondent is a terrible woman and does not stop short of doing anything and she is also indulging in immoral traffic. The 1st petitioner reported the matter to the Police bringing all facts to their notice, but no action was taken by the Police so far. The 1st petitioner, who is the natural father of the minor girl, apprehends grave danger to the life, health and safety of the child if the 1st respondent continues to have the custody of the child and may wreak vengeance on the petitioner. The petitioners also apprehend that the 1st respondent may evade notice and may abscond and remove the child to some unknown place or may even put an end to the life of the child by administering poison or by torture. We may at once state that this last allegation is wholly unfounded. The 1st respondent was served notice without any delay and the 1st respondent produced the child before the Court on the date when this petition was posted for hearing . This minor girl aged between 6 and 7 years appears to us to be quite healthy and happy. Further the 1st respondent was producing the child before the Court on all the days on which this petition was heard and the 1st respondent and the child were sitting in the Court throughout the hearing of this petition. So, the apprehensions of the petitioners alleged in the affidavit are wholly imaginary and unfounded. It is for the reasons alleged in the affidavit that a writ of habeas corpus or direction in the nature of the habeas corpus directing the production of the child and set her at liberty by handing over the custody of the child to the petitioners as prayed for. The 1st respondent filed a lengthy counter-affidavit detailing what all according to the 1st respondent happened from the time the 1st petitioner married her deceased daughter Padmavathi upto July, 1966. The material allegations in the 1st petitioner’s affidavit were denied. It was denied that her daughter, Padmavathi died due to accidental fire. It was alleged that after the death of Padmavathi, the child Varalakshmi was never with the 1st petitioner. The allegation that the 1st respondent sold the child to the 2nd petitioner for Rs. 500 was characterised as an utter falsehood. It was denied that her daughter, Padmavathi died due to accidental fire. It was alleged that after the death of Padmavathi, the child Varalakshmi was never with the 1st petitioner. The allegation that the 1st respondent sold the child to the 2nd petitioner for Rs. 500 was characterised as an utter falsehood. She denied that she abandoned the child at all at any time. She denied that she had made any false representations to the and petitioner regarding the child’s parents. Apparently the 1st respondent was referring to the allegation that she told the 2nd petitioner that both the parents of the child died due to a fire accident. It was asserted that the 1st petitioner never came to her house asking for the custody of the child after the death of her daughter, Padmavathi. She further denied that she ever represented to the 1st petitioner that the child died due to shock. She stated that the 2nd petitioner shifted to Hyderabad even in or about August, 1965 and not in February, 1966 for carrying on business in ghee and it was asserted that the and petitioner has no right or authority to bring up the child as his own. The 2nd petitioner and his wife were staying in the beginning with the 1st respondent and her eldest son-in-law Duba Raju and subsequently they took up another house on rent She denied that she demanded any money from the 2nd petitioner after he came to Hyderabad or that she demanded, in the alternative, the return of the child. The allegations in paragraph 9 of the affidavit were denied and it was asserted that even long before he came to Hyderabad the and petitioner knew that the child’s father was alive. In paragraph 5 of the counter-affidavit it is alleged that the 1st respondent demanded return of the money given by her to the and petitioner for the purpose of admitting the child in school but the and petitioner had spent away the money. In the same paragraph it is further alleged that: “She (the 1st respondent) demanded that the child who was kept in confinement by chaining her and who was not allowed to go out of the 2nd petitioner’s house be allowed to return to her The 2nd petitioner did not accede to the request and picked up a quarrel. In the same paragraph it is further alleged that: “She (the 1st respondent) demanded that the child who was kept in confinement by chaining her and who was not allowed to go out of the 2nd petitioner’s house be allowed to return to her The 2nd petitioner did not accede to the request and picked up a quarrel. The Police charge-sheeted us both for quarrelling.” It was denied that the police ever beat the and petitioner and gave away the child to her But it is asserted that on one day the 2nd petitioner removed her son’s bicycle which was parked outside her house and her son gave a police complaint for the theft of the cycle. Being afraid that he might be charge-sheeted, the 2nd petitioner restored both the cycle and the child to the 1st respondent and her son withdrew the complaint. It is asserted that the child happily came back to her and that all the allegations to the contrary are false. The 1st respondent further asserted that there is no danger to the life of the child, who is living happily and willingly with her. She loves the child and the child loves her. The allegation that she and her son used to beat the child every day is characterised as utterly false. On the other hand it is asserted that the petitioners are angry with the child as contrary to their expectations and planning the child is refusing to leave the 1st respondent, her maternal grand-mother. The 1st respondent further denied that she is indulging in immoral traffic. We may at once say that there is not a title of evidence or material to support the allegation that the 1st respondent is indulging in immoral traffic. It is claimed that the 1st respondent was living from the income on her lands and her house and by working as a cook in respectable houses. It is asserted that the 1st petitioner has no love for the child and is not interested in the child. It is also alleged that the 1st petitioner was always pestering his wife late Padmavathi for money and the latter was brought to the 1st respondent’s house for confinement. It is asserted that the 1st petitioner has no love for the child and is not interested in the child. It is also alleged that the 1st petitioner was always pestering his wife late Padmavathi for money and the latter was brought to the 1st respondent’s house for confinement. On enquiry the 1st respondent came to know that the 1st petitioner was befriending one Ramachandra Rao, a clerk in the same office in which the 1st petitioner is working as a van driver and that both of them were leading a bad life getting drunk heavily. After the child was born in the beginning of 1960 the 1st petitioner again started pestering his wife to bring money to enable him to purchase a car which he could run as a taxi. The 1st petitioner was beating and ill-treating his wife. If the 1st respondent and her son intervened, he used to beat them also. On one occasion in a fit of anger the 1st petitioner threw his daughter the minor child who was then 3 or 4 months old, on to the ground which resulted in a fracture of the child’s left arm and the child had to be kept in the Nilofur Hospital for three weeks. On another occasion the 1st petitioner brought some goondas fully drunk and beat his wife and the respondent and her eldest son-in-law. The matter was reported to the police two or three times and the police did not take any action. Padmavathi was always willing to go with her husband the 1st petitioner. But he neglected and refused to maintain her and their child, Varalakshmi. So a petition under section 488, Criminal Procedure Code had to be filed in the Third City Magistrate’s Court, Hyderabad for her maintenance and that of the child, Varalakshmi. In that petition it was also prayed that security might be taken from the 1st petitioner for Keeping the peace and for the safety of the lives of his wife and daughter. The said petition was numbered as 63 of 1960. On the intervention of some elders and on the advice of the Magistrate, the case was compromised and Padmavathi went with her child to live with her husband, the 1st petitioner. It was further alleged that Ramachandra Rao, referred to above, continued to visit the residence of the 1st petitioner and was threatening Padmavathi. On the intervention of some elders and on the advice of the Magistrate, the case was compromised and Padmavathi went with her child to live with her husband, the 1st petitioner. It was further alleged that Ramachandra Rao, referred to above, continued to visit the residence of the 1st petitioner and was threatening Padmavathi. It was also further alleged that the 1st petitioner Kept a concubine in his house in spite of his wife’s protestations. One evening in June, 1961 the 1st respondent’s eldest son-in-law, Dubaraju received a phone call informing him that Padmavathi died in the hospital receiving burns. Then the 1st respondent and Dubaraju went to hospital. There the hospital authorities gave the 1st respondent the dead body of Padmavathi. They gave them also the child. It is also alleged that the 1st petitioner’s version that the fact that Padmavathi’s saree caught fire accidentally is not true and that the respondent suspected that the 1st petitioner and his friend Ramachandra Rao were responsible for her daughter’s death and that the death could not be an accidental one. It is further alleged that for about 3 months after her daughter’s death the 1st petitioner did not go to her residence. Later he went and demanded that the minor child Varalakshmi should be handed over to him. As the 1st respondent was afraid that the child’s life also would not be safe in the 1st petitioner’s hands she refused to hand over the child to him. On one occasion the 1st petitioner and his friend Ramachandra Rao beat her in the middle of the road and passers by intervened and saved her. She filed a case before the Magistrate’s Court but the case was dismissed as not proved beyond reasonable doubt. It is further asserted that since the beginning of 1962 the 1st petitioner ceased to go to her house even to see his daughter Varalakshmi. He married the second wife in 1962 itself. By this allegation it is meant to convey the idea that after the 1st petitioner married again he never cared for his daughter, Varalakshmi and never took interest in her. He married the second wife in 1962 itself. By this allegation it is meant to convey the idea that after the 1st petitioner married again he never cared for his daughter, Varalakshmi and never took interest in her. In paragraph 11(g) of the counter-affidavit it is stated that in 1962, and petitioner though a Vysya by caste, and who is no other than her elder sister’s son-in-law and who has no child of his own took interest in this minor child Varalakshmi." Whenever the 1st respondent was in Kakinada the minor child, Varalakshmi was allowed to go to the residence of the 2nd petitioner. Sometimes she used to leave the child in the 2nd petitioner’s house in the care of the 2nd petitioner’s wife, Satyavathi who was also her sister’s daughter. On such occasions she used to give money also for the maintenance of the child. Next it is asserted that the 2nd petitioner began to reside in Hyderabad from August, 1965 doing petty business in ghee. He, his wife and the minor child resided with the 1st respondent in the beginning. Sometime afterwards the 2nd petitioner moved away to another house. The 1st respondent gave money to the 2nd petitioner to get the minor girl to join in a school but the 2nd petitioner spent away the money. One day there was a quarrel between the 2nd petitioner and the 1st respondent and the police charge-sheeted them both. The 2nd petitioner kept the minor girl in confinement. It is again asserted in paragraph 11 of the counter-affidavit that the 1st petitioner is not interested in the child at all and that since 1962 he never cared even to see the child. It is alleged that both the petitioners are addicted to heavy drink and that the interests of the child will not be safe in their hands. The 1st respondent is afraid for the child’s life if she is kept in their custody. Therefore, it is submitted that the interests of the child are paramount and that those interests will not be served if the child’s custody is with either of the petitioners. The petition is not maintainable under section 491, Criminal Procedure Code. The jurisdiction under which can be invoked only in an emergency and there is no such emergency in this case. The petition is not maintainable under section 491, Criminal Procedure Code. The jurisdiction under which can be invoked only in an emergency and there is no such emergency in this case. It is also submitted that there is an alternative and effective remedy to the petitioners even for their imaginary grievance. In the result it is prayed that the petition may be dismissed. A this stage it is to be mentioned that the original affidavit of the 1st petitioner was filed in support of the petitioner on 5th August, 1966. The 1st petitioner has filed a supplementary affidavit on 24th day of August, 1966. In this supplemental affidavit it is stated that he (the 1st petitioner) married a second wife in 1962 and that he was not blessed with a child so far. He stated that there is no hope of having any children by his second wife. He got her examined by a doctor one Sri Ranga Reddy of Nizam Orthopaedic Hospital who declared that his second wife is "sterile and unfit for child-bearing as she is lame and is suffering from a permanent and incurable physiological defect." He further stated that he has an ardent desire to bring up his own child, the minor daughter and bestow all his affection on her. He reiterated that the 1st respondent deluded him into the belief that his child had died and his joy was boundless when he found he child in the custody of the 2nd petitioner years after, alive and healthy. He stated that he had a permanent job carrying a monthly salary of about Rs. 160 inclusive of allowances and has sufficient means to bring up his child. He further alleged that the 1st respondent has no independent means of livelihood. He explained in paragraph 6 of the supplemental affidavit that he asked the 2nd petitioner to join in the petition so that all the parties concerned in the episode are before the Court and a true and complete picture may be presented to the Court. He wants to bring up his daughter himself and he does not intend to entrust her to the custody of the 2nd petitioner. The supplemental affidavit was filed by the 1st petitioner apparently because it must have been realized by both the petitioners that the 2nd petitioner has no legal right to the custody of the minor. He wants to bring up his daughter himself and he does not intend to entrust her to the custody of the 2nd petitioner. The supplemental affidavit was filed by the 1st petitioner apparently because it must have been realized by both the petitioners that the 2nd petitioner has no legal right to the custody of the minor. That is why though in the petition itself the prayer was to hand over the child to the petitioners, the supplemental affidavit was filed with the allegation that the 1st petitioner who is the natural father and the legal guardian wants to bring up the child himself and will not hand over the minor to the 2nd petitioner. We have also to mention here that the supplemental counter-affidavit filed by the 1st respondent was sworn to on 29th August, 1966. There are two reply affidavits one by the 1st petitioner and the other by the 2nd petitioner. The 1st petitioner stated in his reply affidavit that the 1st respondent wanted him to live in her house and give away his salary to her every month which he refused to do. The 2nd petitioner stated in his reply affidavit that he purchased the minor girl in 1962 for Rs. 500 and that at that time the 1st respondent represented to him that the parents of the child died in the hospital on account of burns. He denied the allegation regarding the theft of a cycle and the circumstances under which the minor girl went into the custody of the 1st respondent. He denied that the child was for sometime living with the 1st respondent during he period from 1962 to 1966. During the hearing of this petition another affidavit of one Pidaka Venkata Rao is filed before us. He is the son of the 1st respondent’s sister. In that he stated that his eldest sister Sathyavathi abandoned her living husband, Elugu Subba Rao and developed intimacy with the 2nd petitioner. This is filed on behalf of the 1st petitioner himself. Therefore, it is clear from this that Satyavathi, who is the daughter of the 1st respondent’s sister and who is stated to be the wife of the 2nd petitioner is not really his wife at all because she was married to Elugu Subba Rao who is alive. This is filed on behalf of the 1st petitioner himself. Therefore, it is clear from this that Satyavathi, who is the daughter of the 1st respondent’s sister and who is stated to be the wife of the 2nd petitioner is not really his wife at all because she was married to Elugu Subba Rao who is alive. Anyhow this matter need not be pursued further because the learned Counsel for the petitioners stated that the claim of the 2nd petitioner to have the custody of the minor is given up and the claim is now made only by the 1st petitioner who is the natural father and legal guardian under the law for the custody of his minor daughter. Therefore, we have to decide whether in the circumstances of this case the 1st petitioner is entitled to an order directing the 1st respondent to hand over the custody of the minor girl, Varalakshmi to the 1st petitioner. English translations of certain correspondence which passed between the 1st respondent and the 2nd petitioner were placed before us for perusal and certain facts also emerge from the other records placed before us. When the minor’s mother, Padmavathi was alive she filed a petition for maintenance under section 488, Criminal Procedure Code, against her husband the 1st petitioner. Therein she alleged that her husband (1st petitioner) developed bad habits and used to get drunk heavily and beat her and was insisting on her bringing money from her mother for purchasing a car. She further alleged that at one time he had quarrelled with his wife and threw his minor daughter aged about four months on the ground with the result that the left arm of the child was fractured and he child was kept in the Nilofur Hospital for 20 days. Other allegations were also made and it was prayed that security might be taken from the 1st petitioner for keeping the peace and for good behaviour and for safety of the life of the petitioner and her daughter and also for maintenance at the rate of Rs. 80 per mensem. The husband filed a counter to the same. He stated that he was willing to have his wife and child with him and maintain them. He alleged that his mother-in-law who is the 1st respondent before us, was preventing his wife and child from living with him. 80 per mensem. The husband filed a counter to the same. He stated that he was willing to have his wife and child with him and maintain them. He alleged that his mother-in-law who is the 1st respondent before us, was preventing his wife and child from living with him. He made further allegations against his mother-in-law. The matter was ultimately compromised. The compromise is dated 16th January, 1961. Under the compromise the wife Padmavathi agreed to go and live with her husband and she also agreed that her mother would not visit them in their house and that she would not go other mother’s house and that her mother and brother would not interfere with her domestic affairs. The 1st petitioner, husband, agreed that he would not be given to any bad ways of life like drinking and that he would treat his wife with affection and never ill-treat her and that he would not allow Ramachandra Rao employed in the office of L.G.L. to visit his house. After that compromise, it appears from the record, that Padmavathi along with her minor child went to live with the 1st petitioner. Then there is a letter written by Padmavathi to her mother, the 1st respondent herein, in February, 1961 wherein she stated that she and the child were doing well; that her husband’s concubine quarrelled with him and left and that her husband was looking after her well. In that letter she also wrote that her husband was threatening to launch a case against his mother-in-law and others and that her husband was worrying her saying that she came empty-handed. She further stated in that her husband was saying that he would launch a case against the 1st respondent, her son and others and was threatening to send her back if she does not give evidence in the Court. That is the only letter which we have before us about the relationship of the parties after the compromise and till Padmavathi died due to fire accident in the Osmania Hospital on 5th June, 1961. The record further shows that the 1st petitioner also suffered burn injuries and was admitted into the Osmania Hospital and was an in-patient there for about two months. After he got discharged from the hospital he tried to get the custody of the minor child who was with the 1st respondent, her grand-mother. The record further shows that the 1st petitioner also suffered burn injuries and was admitted into the Osmania Hospital and was an in-patient there for about two months. After he got discharged from the hospital he tried to get the custody of the minor child who was with the 1st respondent, her grand-mother. But the latter resisted successfully. So, the minor girl continued to be brought up by the 1st respondent. Sometime in 1962 the 1st respondent went to Kakinada in East Godavari District, where the 2nd petitioner resided. The 2nd petitioner at that time was living with Satyavati, the sister’s daughter of the 1st respondent, as his wife. The child was entrusted to the 2nd petitioner by the 1st respondent to be brought up. The correspondence placed before us shows that though the child was with the 2nd petitioner, the 1st respondent was taking keen interest in the welfare of the child and in every letter which she wrote to the 2nd petitioner, she was referring to the child in very affectionate terms and enquiring after the child’s health. The case for the petitioners was that the 1st respondent represented to the 2nd petitioner at Kakinada that the parents of the child died in a fire accident. But there is no material to substantiate this allegation. The 2nd petitioner was living with the daughter of the 1st respondent’s sister and the 1st petitioner is the son-in-law of the 1st respondent herself. We are unable to believe that the 2nd petitioner did not know what actually happened due to the fire accident and whether the 1st petitioner was alive or not. We cannot also accept the story that the 1st respondent sold the girl to the 2nd petitioner for Rs. 500. The 2nd petitioner is a Vysya and in this petition he is thinking in terms of sale and purchase of the minor girl as if it was a chattel. The probability is that since the 2nd petitioner has no children, he took a fancy for the child and wanted to bring her up and the 1st respondent who is related to him and knows him very well agreed to do so apparently because she had other worries and commitments. Under the circumstances we do not find it reasonable to assume that the 1st petitioner also did not know about the whereabouts of his minor daughter. Under the circumstances we do not find it reasonable to assume that the 1st petitioner also did not know about the whereabouts of his minor daughter. We are unable to accept the 1st petitioner’s assertion that after he married the second wife, he went and asked the 1st respondent for his minor child and the 1st respondent represented to him that the child had died due to shock. There is one reason why we cannot believe this assertion of the 1st petitioner. On 15th May, 1966the 1st petitioner made a complaint to the Sub-Inspector of Police, Saifabad Police Station, Hyderabad. Therein he referred to his marriage with Padmavathi, the daughter of the 1st respondent in the year 1958 and to the birth of the daughter. He stated that his wife died when his daughter was 1½ years old and the daughter was taken by the 1st respondent while he was admitted in the Osmania Hospital as in-patient in a helpless state. He further stated that subsequently he sent word to the 1st respondent to return his daughter to him but the 1st respondent absconded from Hyderabad with the child. While so, in this complaint the 1st petitioner learnt on the previous day that his minor daughter aged about 7 years was sold by the 1st respondent to Pachipulusu Venkateswararao (the 2nd petitioner), a ghee merchant in Khairatabad for a consideration of Rs.500 and that Venkateswara Rao was bringing up the girl. He prayed that since the grand-mother of the girl is not supposed to sell away his daughter and as he is the legal guardian of the girl the girl may be restored to him. In this complaint he did not indicate that after he married his second wife he asked the 1st respondent about his minor daughter and that she told him that the child had died. Therefore, the present allegation to that effect is clearly an after-thought and cannot be accepted. From 5th September, 1966 the minor girl, Varalakshmi aged about 7 years has been with her maternal grand-mother, the 1st respondent. The record further discloses that the 2nd petitioner got the minor girl admitted in the Holy Mary High School, Saifabad on 6th June, 1966 and that the girl attended the school only on the reopening day i.e., on 15th June, 1966. The record further discloses that the 2nd petitioner got the minor girl admitted in the Holy Mary High School, Saifabad on 6th June, 1966 and that the girl attended the school only on the reopening day i.e., on 15th June, 1966. We may also mention that on 11th May, 1966 there was trouble between the 2nd petitioner and the 1st respondent apparently about the custody of the girl. Conflicting versions about the incident are given by the parties. As already stated on 15th May, 1966 the 1st petitioner made a complaint to the police for the custody of the minor girl. On 17th May, 1966 the 2nd petitioner made a complaint against the respondent and others. Therein he prayed for protection because he apprehended that the 1st respondent and her son and son-in-Law might at any time waylay him and rob him. What exactly happened on these two petitions does not appear from the record. But the fact is that on or from 5th July, 1966 the minor girl is with the 1st respondent. Different and conflicting versions are given by the petitioners and by the 1st respondent as to the circumstances under which the minor girl went into the custody of the 1st respondent. It is not necessary for us to go into that question now because the 2nd petitioner has dropped out of the petition altogether. The learned Counsel for the petitioners argued that the 1st petitioner being the father is the natural and legal guardian of the minor girl and is entitled to the custody of his minor daughter and so it follows that the 1st respondent has illegally detained the minor girl in her custody within the meaning of section 491 of the Criminal Procedure Code. Therefore, it is. urged that an order has to be made directing the 1st respondent to hand over the minor girl to her father the 1st petitioner. Section 491, Criminal Procedure Code, provides that: “1. Any High Court may, whenever it thinks fit, direct................................ (a) ............................................................................. Therefore, it is. urged that an order has to be made directing the 1st respondent to hand over the minor girl to her father the 1st petitioner. Section 491, Criminal Procedure Code, provides that: “1. Any High Court may, whenever it thinks fit, direct................................ (a) ............................................................................. (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty.” The argument of the learned Counsel is that since the 1st respondent had no right and is not the legal guardian of the minor girl and since the 1st petitioner is the natural and the legal guardian of the minor, the detention of the minor by the 1st respondent amounts to illegal detention within the meaning sub-clause (b) of clause (1) of section 491, Criminal Procedure Code above quoted. The learned Counsel also relied upon certain decisions in support of his contention. In Subbuswami Gounden v. Kamakshi Ammal and another1, the husband applied to the High Court under section 491, Criminal Procedure Code, for an order directing that his minor wife aged about 13 years be handed over to him. The contesting respondent was the minor’s mother. It was held by a Division Bench of the Madras High Court that a person who keeps a minor girl in his custody though with her consent, can be said to have illegally detained her, if another person who is better entitled in law to have the custody of that person as her husband, desires to have that custody. It was further held that where a person is entitled to a remedy under section 491 of the Criminal Procedure Code, the fact that he is also entitled to a remedy tor the same relief under the Guardians and Wards Act (1890) which would be less expensive, does not disentitle him from pursuing the former remedy. At the same time the learned Judges pointed out that they had to consider the welfare of the minor. In Rama Iyer v. Nataraja Iyer2, another Bench of the Madras High Court pointed out that a minor under 14 years of age has no will of his own and his detention against his father’s will is unlawful. There the contest was between the father and the maternal grandfather. In Rama Iyer v. Nataraja Iyer2, another Bench of the Madras High Court pointed out that a minor under 14 years of age has no will of his own and his detention against his father’s will is unlawful. There the contest was between the father and the maternal grandfather. It was also pointed out that it cannot be said that the father by marrying a second wife or even by his ill-treating the child’s mother during her lifetime (assuming the ill-treatment alleged to be true) had rendered himself unfit to have the custody of his child. It was further held that the fact that the father had other remedies open to him viz., under the Guardians and Wards Act could not bar his right to apply under section 491 of the Criminal Procedure Code. On the facts the learned Judges held that the minor boy’s disinclination to go to school and study and his aversion to his father were the result of the pernicious influence of his maternal grandfather. The minor boy was staying with his father throughout and he was sent to his maternal grand-parents’ house for a few days. It was then that the maternal grand-parents exerted their influence and prevented the minor from returning to his father. It was under those circumstances the learned Judges stated: “Judging the matter entirely from the point of view of the welfare of the minor, it is manifest that during the short time that the minor has been with the respondent, he has completely lost his aptitude for study and has been playing a truant although just prior to that he was making good progress in the school............................Undoubtedly the minor, after his short stay with his grandfather, has expressed a preference to remain there and his unwillingness to go back to his father.” Under those circumstances the learned Judges made an order directing that the father be given the custody of his minor son. These two decisions were referred to with approval by the Supreme Court in Gohar Begum v. Suggi alias Nazama Begum and others1. The parties were Moslems. The minor child was the illegitimate daughter of the appellant. The child on the date of the application under section 491, Criminal Procedure Code made by the mother in the High Court of Bombay was 6 years old. The parties were Moslems. The minor child was the illegitimate daughter of the appellant. The child on the date of the application under section 491, Criminal Procedure Code made by the mother in the High Court of Bombay was 6 years old. The mother was a singing girl by profession and so also the respondent, who was the sister of the applicant’s mother. The respondent was in the keeping a man. The learned Judges of the High Court held that the case raised various controversial questions, especially as to the paternity of the child and that it was not the function of a Court in an application under the section 491, Criminal Procedure Code to record findings on such controversial facts and that the proper remedy for the mother was to apply under the Guardian and Wards Act (1890) for the custody of the child. The High Court further observed that they were prima facie satisfied that the child was not illegally and improperly detained by the respondent. Therefore, they dismissed the petition. The mother appealed to the Supreme Court. The Supreme Court pointed out that under the Mohammedan Law the mother was entitled to the custody of her illegitimate daughter, no matter who the father was and the respondent hadno legal right whatsoever to the custody of the child and, therefore her refusal to make over the child to the appellant resulted in an illegal detention of the child within the meaning of section 491, Criminal Procedure Code. At the same time the Supreme Court pointed out that: “Before making the order the Court is certainly called upon to consider the welfare of the infant concerned. Now there is no reason to think that it is in the interest of the child Anjum to keep her with the respondent.” The Supreme Court also held that though the mother, the legal guardian had a right to relief under the Guardians and Wards Act, there is no justification for denying her the custody of her child under section 491 of the Criminal Procedure Code. In the result, the Supreme Court allowed the appeal and made an order under section 491, Criminal Procedure Code and directed the respondents to make over the custody of the child to the appellant (the mother). In the result, the Supreme Court allowed the appeal and made an order under section 491, Criminal Procedure Code and directed the respondents to make over the custody of the child to the appellant (the mother). These decisions establish: (1) that a refusal by a person having the custody of a minor to hand over the minor to the legal guardian, amounts to illegal detention within the meaning of section 491, Criminal Procedure Code; (2) that the fact that the legal guardian has a right to relief under the Guardians and Wards Act, (1890) is no bar to his applying for the same relief, under section 491, Criminal Procedure Code; and (3) in all these cases the welfare of the minor is to be considered by the Court before passing an order under section 491 directing the minor to be given to the legal guardian; In this connection it will be useful 10 refer to section 25, clause (1) of the Guardians and Wards Act, 1890: “25. (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.” It is also clear from this section that before a Court passes an order directing the minor to be delivered to the custody of the legal guardian, the Court has to be satisfied that it will be for the welfare of the minor to return to the custody of the guardian. While considering an application under section 491, Criminal Procedure Code, the Court has also to consider the welfare of the minor because it is the interest of the minor that it is paramount. This is also clear from the decision of the Full Bench of the Madras High Court in Shark Moidin v. Kunhadevi1. In that case the father made an application for the issue of a writ of habeas corpus directing that the custody of his son aged about 7 or 8 years should be delivered to him. This is also clear from the decision of the Full Bench of the Madras High Court in Shark Moidin v. Kunhadevi1. In that case the father made an application for the issue of a writ of habeas corpus directing that the custody of his son aged about 7 or 8 years should be delivered to him. But there was nobody in his house to look after the child of such tender age, he himself being a driver of a motor car. The Full Bench held: “It is quite true that after a time prima facie in the eye of the law he is the natural guardian and custodian of the person of his child. But it has been the law for a very long time both in England and in this country that what a Court has to look to on applications under habeas corpus in the interest of the child as being paramount. In this case there is nothing to show that the father is in a position to look after the child-I do not say anything at all against his character but the fact remains that he has got a wife married before he married the mother of the child and that wife apparently, assuming that she is quite willing to treat her step-children properly, is constantly away. What is the result during these periods? The petitioner is a man who earns his livelihood by driving a motor car which means he will be out on the roads practically all day. It is not suggested that in the absence of the first wife there will be any other woman about whom anybody can ascertain anything-We have no materials for doing so-Who will look after a child of this tender age? The boy is now between 7 and 8”. For that reason the father’s application under section 491, Criminal Procedure Code, was dismissed. On the state of the authorities there can be no doubt that the 1st petitioner who is the natural and the legal guardian of his minor daughter, Varalakshmi, would ordinarily in law be entitled to have the custody of his minor daughter: It is also now well settled that the fact that he could apply under section 25 of the Guardians and Wards Act, 1890 is no bar to the maintainability of the petition under section 491, Criminal Procedure Code. But still we have to see whether in the present case it will be for the welfare of the minor to be put in the custody of the 1st petitioner. In the year 1962 the 1st petitioner married a second wife. From his supplemental affidavit filed by him on 24th August, 1966, it appears that the second wife is lame and is suffering from a permanent and incurable physiological defect. We wanted to satisfy ourselves that if the custody of the minor girl is to be given to the 1st petitioner there is someone in his house to look after and care for the minor girl. We saw the (1st petitioner’s second wife) in the Court. We are also told by the Counsel appearing for the 1st petitioner that she underwent an operation recently. She is a cripple and requires the assistance of someone to move about. We do not think that she can take care of the minor child when she herself does certainly need someone to look after her. The 1st petitioner is a driver of a van employed in the Office of the Director of Municipal Administration, Hyderabad. So, it may be taken that he will be away from the house practically all the day. It follows that if the custody of the minor girl is given to the 1st petitioner, there will be virtually no one in his house to care for and look after the girl. Therefore we are not satisfied that it will be for the welfare of the minor girl to be put in the custody of the 1st petitioner, for the present, though he be her father and natural guardian. The girl has been in the Court throughout the hearing of this petition. We find that she is a healthy and sprightly girl and we are satisfied that she is being looked after well. We are not satisfied that there is any danger to the life, health and safety of the minor girl if the 1st respondent continues to be in the custody of the child. It is already noticed above in this judgment that the correspondence placed before us clearly indicates that the 1st respondent is very much interested in the welfare of the minor and loves her. It is already noticed above in this judgment that the correspondence placed before us clearly indicates that the 1st respondent is very much interested in the welfare of the minor and loves her. Therefore, though normally under the law the 1st petitioner is the father and the legal guardian of the minor girl, Varalakshmi and will be entitled to the custody of the minor girl, we do not think we will be justified in ordering the 1st respondent to hand over the custody of the minor girl to him, in the circumstances of the case, for the present, particularly because there is no one in the house of the 1st petitioner to look after and care for the child. On that short ground we dismiss this petition. G.S.M. ----- Petition dismissed.