Judgment :- N. PAUL VASANTHAKUMAR, J. 1. This habeas corpus petition is filed by the mother of the detenue by name Kavitha, aged 16 years, seeking custody of minor detenue. 2. It is stated in the affidavit filed in support of the habeas corpus petition that the detenue is a minor and she has completed SSLC; that on 11.7.2011 when the detenue went to the shop of the alleged brother of the petitioner's husband, the third respondent lured the detenue Kavitha; that even though the detenue was searched, the whereabouts could not be found; that on 14.7.2011 petitioner came to know that on 11.7.2011 third respondent with the help of his friends abducted the detenue; that the petitioner filed a complaint before the second respondent on 14.7.2011, which was registered as Cr.No.122 of 2011 under section 366A of IPC; and that, the second respondent has not taken any steps to secure the detenue, who is a minor. 3. The biological father of the detenue, who was impleaded as 4th respondent in this habeas corpus petition as per order of the Court dated 31.1.2012, appeared before the Court and also filed an affidavit stating that he is agreeing to undertake his second daughter viz., Kavitha, detenue herein, along with him. The said undertaking dated 7.2.2012 is recorded. 4. The detenue is also present before the Court. We have questioned the detenue, and she submitted that she is willing to go along with her father, 4th respondent herein, and that, she is not willing to go with her mother, petitioner herein, as the petitioner is living with another person. 5. While determining the guardianship/custody of the minor, the welfare of the minor, though be a paramount consideration, the wishes of the minor should also be ascertained as per Section 17(3) of the Guardian and Wards Act, 1890. (a) In (2005) 12 SCC 452 (Mamta alias Anju v. Ashok Jagannath Bharuka) in paragraph 4 the Supreme Court held that before deciding the issue as to whether the custody should be given to the mother or father, or partially to one and partially to other, the High Court must take into account the wishes of the child concerned, in addition to ascertaining the comparative material welfare that the child may enjoy with either parent. In the said case, the wishes of the minor was not ascertained. In the said case, the wishes of the minor was not ascertained. Hence the Supreme Court set aside the decision of the High Court and remanded the matter back to the High Court for fresh consideration. (b) In (2006) 3 SCC 62 (Sheila B.Das v. P.R.Sugasree) a minor girl aged 12 years was interviewed to ascertain her preference. In the said case, though the minor expressed no animosity against the mother, preferred to be with father with whom she felt more comfortable and the Supreme Court considering the choice of the minor, allowed the guardianship of the minor with the father and the mother was given visiting rights and also to have custody of the minor for ten consecutive days during summer vacation on dates mutually agreeable to them. The Honourable Supreme Court also granted liberty to the parties to approach the Family Court in case of any change in circumstance. (c) In the decision reported in (2008) 9 SCC 413 : 2008 (4) CTC 425 (SC) (Nil Ratan Kundu v. Abhijit Kundu) the Honourable Supreme Court in paragraph 74 held that ascertaining the wishes of the minor while deciding the guardianship of the minor should also be ascertained, though the decision rests with the Court. In paragraph 79 it is further held that calling the minor children for repeated interview for ascertaining the wishes of the minor may not be proper, however, the Court is empowered to ascertain the wishes of the minor as to with whom he or she wanted to stay. In paragraph 52 (in SCC) the Supreme Court has given guidelines to decide the guardianship of a minor, which reads as follows: "(52.) In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor." (d) In (2010) 2 SCC 654 (Athar Hussain v. Syed Siraj Ahmed) the question of giving custody of a minor was considered and preference made by the minor, who was 10/11 years old, who was capable of making intelligent preference, was taken into consideration for giving interim custody. (e) This Court in 2003 (4) LW 101 (V.Maria Pushpa Janet Rajam v. G.Anantha Jeyakumar) considered the said issue and held that section 17 of the Guardian and Wards Act, 1890 emphasises that the Court should be guided of the sole consideration of the welfare and wish of the minor while deciding the guardianship. While appointing a guardian, the paramount consideration is that his or her appointment shall not be against the will of the minor. 6. From the above referred decisions of the Honourable Supreme Court and of this Court and having regard to the statutory provision contained in Section 17 of the Guardian and Wards Act, 1870, we are of the view that the detenue is entitled to go with her father, who is 4th respondent in this habeas corpus petition. The detenue cannot be sent along with third respondent as admittedly the detenue is a minor as on date. 7. The detenue cannot be sent along with third respondent as admittedly the detenue is a minor as on date. 7. In the result, in view of the willingness expressed by the detenue in the Court and the affidavit of undertaking filed by the 4th respondent, this habeas corpus petition is disposed of, directing custody of the detenue minor Kavitha with the 4th respondent herein, who is her biological father, as an interim measure. If the petitioner has got any right as to the custody of detenue Kavitha, it is open to the petitioner to approach the appropriate forum.