JUDGMENT Karunesh Singh Pawar, J. The petition seeks issuance of a writ in the nature of Habeas Corpus commanding the opposite parties 3, 4 and 5, to produce the detenu Master Namish Gupta alias guddu Gupta in Court and provide his custody to his father Nitesh Gupta, the petitioner. 2. Heard Mr. Satendra Kumar (Singh), learned counsel for the petitioner, Mr. Alok Tiwari, learned Additional Government Advocate as well as Mr. Pramod Kumar Singh, learned counsel for private respondents 3 to 5. 3. Brief facts of the case are that the detenu Namish Gupta alias Guddu Gupta was aged about 1-1/2 years at the time of filing of this petition and presently, he is about 2-1/2 years. The deponent Nitesh Gupta is his father and natural guardian. The deponent was married to late Priyanka Gupta, daughter of respondents 3 and 4 and sister of respondent No.5 on 22.4.2014 according to Hindu rites and rituals. It is pleaded that the petitioner is running an industry at Kolkata. Out of their wedlock, initially, a girl, namely Kanika Gupta was born on 7.9.2015 who is presently residing with the deponent. The late Priyanka Gupta again conceived in the year 2020. At that time, the parents of late Priyanka Gupta requested to send her to Lucknow so that she may reside with her mother who can take care of her during pregnancy and delivery. 4. Learned counsel for the petitioner submits that the petitioner has taken care of the deceased mother of the detenu as well as the detenu and extended financial help to private respondents. Photocopy of bank statement through which the money was credited into the account of private respondents has been filed as Annexure No.1 to the petition. It is submitted that the petitioner has successfully raised her elder daughter Kanika Gupta who is studying in Kolkata at G.D. Goenka School. He further submits that the petitioner has taken health insurance of a sum of Rs.5 lacs in the name of himself and his two children, i.e. baby Kanika Gupta and Master Namish Gupta. He has also opened a Sukanya Samriddhi Account to secure future financial needs of Kanika Gupta and used to deposit for future financial needs. Copy of Sukanya Samriddhi Account of Baby Kanika Gupta has been filed as Anenxure No.4 to the petition. He has also purchased an insurance policy in the name of baby Kanika Gupta. He has also opened a Sukanya Samriddhi Account to secure future financial needs of Kanika Gupta and used to deposit for future financial needs. Copy of Sukanya Samriddhi Account of Baby Kanika Gupta has been filed as Anenxure No.4 to the petition. He has also purchased an insurance policy in the name of baby Kanika Gupta. It is submitted that since the deponent has been taking care of the financial needs of the detenu as also private respondents, the respondents are using the detenu as an instrument to extract money and they do not want to hand over the custody of the child to the deponent. Though sufficient amount was handed over to private respondents for treatment of late wife of the deponent, the private respondents instead of consulting an expert Gynecologist consulted a doctor having B.H.M.S. (Homeopathic) degree and all the time the deponent was told that Priyanka Gupta was under observation of an expert of Gynecologist. On 14.12.2020, late Priyaka Gupta gave birth to the detenu in Deep Hospital, Hardoi Road, Lucknow. Copy of birth certificate is on record and has been filed as Annexure-2. It is submitted that due to septic shock, the medical condition of late Priyanka Gupta deteriorated and as such she was referred to K.G.M.U, Lucknow on 19.12.2020 where she died on the same day. It is submitted that the private respondents are denying even the visiting rights and also the custody of the detenu to the deponent. In June, 2021, when the petitioner went to take custody of the detenu, private respondents called police. This fact is not disputed by learned counsel for private respondents. He submits that the deponent being father and natural guardian under Hindu Minority and Guardianship Act deserves to take custody of the minor detenu considering his overall welfare. It is further submitted that the financial position of private respondents is not such that they can provide and meet educational and medical expenses etc to the detenu. Depriving the detenu of the custody of the deponent will be depriving him from the emotional love and affection from his natural guardian as well as it shall also deprive the detenu of the same love and affection from his elder sister who is residing with the deponent. Depriving the detenu of the custody of the deponent will be depriving him from the emotional love and affection from his natural guardian as well as it shall also deprive the detenu of the same love and affection from his elder sister who is residing with the deponent. In case the custody of the detenu is provided to the deponent, he shall have company of his natural guardian, i.e. father and the company of his sister. It is submitted that the deponent lives at Kolkata in a joint family where he lives along with his father, uncle, aunt and his daughter, thus, it is submitted that there are enough family members to take care of the detenu. In support of his contention, learned counsel has relied on judgment of Supreme Court in Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others (2019)7 SCC 42 , judgment dated 30.9.2022 in Vinayak Tripathi and another v. State of U.P. and others passed by a coordinate Bench of this Court in Habeas Corpus Writ Petition No.2583 of 2017 and judgment dated 19.4.2018 of Karnataka High Court in Smt. Manju Malini Seshachalam v. Vijay Thirugnanam and others passed in W.P. H.C. No.13 of 2018. 5. Per contra, Mr. Alok Tiwari, learned A.G.A. and learned counsel for private respondents have opposed the petition. Learned A.G.A. has submitted that since the detenu is residing with his maternal grand parents since birth and therefore, depriving him of the custody of the maternal grand parents may not be in overall welfare of the detenu as he may have been emotionally attached with the grand parents and the age of the detenu is not such that he may make any judgment regarding his choice as to with whom he wants to stay. In support of his contention, Mr. Tiwari has relied on judgment of a coordinate Bench of this court in Reshu alias Nitya and others v. State of U.P. and others 2021(6) ALJ 632. 6. Learned counsel for private respondents submits that though the deponent is a natural guardian but they are having the custody of the detenu since birth and they want to keep on having the custody of the detenu, which will be in the interest of the detenue itself. 6. Learned counsel for private respondents submits that though the deponent is a natural guardian but they are having the custody of the detenu since birth and they want to keep on having the custody of the detenu, which will be in the interest of the detenue itself. As regards the amount received by them from the deponent, it has been submitted by learned counsel that the same was given for purchase of some articles. Attention of the court has also been invited to some bills and vouchers which have been filed along with supplementary counter affidavit. It is submitted that financial condition of private respondents is good enough to give a good education and upbringing to the detenu. 7. The petitioner's counsel while rebutting the submission raised by learned counsel for private respondents submits that private respondents have not approached the court with clean hands. It is submitted that in paras 22, 23 and 24 of the petition, a categorical pleading has been made that the deceased mother of the detenu was consulted by a Homeopathic doctor having B.H.M.S. degree, and not by an expert Gynecologist. He has relied on birth certificate issued by Deep Hospital dated 14.12.2020. While filing counter affidavit, no reply has been given to the contents of para 24 of the writ petition which states about birth certificate of the detenu. However, while filing supplementary counter affidavit, the private respondents have filed one more birth certificate bearing the name of the same hospital with same serial number, but this time name of the doctor has been changed and an impression is sought to be given to the court that the deceased mother of the detenu was treated by a Gynecologist. It is submitted that not only this, while filing counter affidavit, a different story regarding the money received from the deponent was given by private respondents. However, while filing supplementary counter affidavit, story has been changed and few bills have been annexed along with supplementary counter affidavit as Annexure No.SCA-4 to show unsuccessfully that the money was transferred by the deponent to purchase some consumable product of FLP Trading Private Limited for themselves. He has also invited attention of this court to page 65, i.e. SCA-5 where some customer invoice has been filed. At page 65 and 66, the consignee name is shown as Priyanka Gupta, mother of the detenu. He has also invited attention of this court to page 65, i.e. SCA-5 where some customer invoice has been filed. At page 65 and 66, the consignee name is shown as Priyanka Gupta, mother of the detenu. Page 66 is the photocopy of page 65 and from page 67 onwards, the alleged customer invoices are in no way connected with the deponent or the deceased mother of the detenu as the details of the consignee to whom the products are being shipped have not been given. It is submitted that by filing two affidavits which are in contradiction, the private respondents have tried to mislead the court. 8. This Court has noticed that the date of birth certificate issued by Deep Hospital and annexed as Annexure 2 to the writ petition bears serial No.742 and the name of the doctor is Kamla Prasad. It is noticed that no reply to para 24 of the petition has been given wile filing counter affidavit. However, while filing supplementary counter affidavit, another birth certificate has been filed which also bears the same serial No.742, however, name of the doctor has been changed as Dr. Nihan Iqbal. No satisfactory reply could be given by learned counsel for private respondents as to why no reply was given in the counter affidavit filed by them. However, this court is conscious of the fact that this is a habeas corpus petition seeking custody of the detenu filed by his father in his overall interest. 9. In Tejaswini Gaud's case (supra), the Supreme Court held that for restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction and thus, in that case while affirming the judgment of the High Court dated 6.2.2019 in Shekhar Jagdish Prasad Tewari v. State of Maharashtra 2019 SCC Online Bom 214, the appellant was directed to hand over the custody of the child to the first respondent father with certain directions and observations. Relevant paragraphs of Tejaswini Gaud's case is reproduced herebelow : "13. Relevant paragraphs of Tejaswini Gaud's case is reproduced herebelow : "13. Countering this contention, the learned counsel for respondent No.1 submitted that in the given facts of the case, the High Court has the extraordinary power to exercise the jurisdiction under Article 226 of the Constitution of India and the High Court was right in allowing the habeas corpus petition. The learned counsel has placed reliance on Gohar Begum and. Manju Malini Sheshachalam. Contention of respondent No.1 is that as per section 6 of the Hindu Minority and Guardianship Act, respondent No.1, being the father, is the natural guardian and the appellants have no authority to retain the custody of the child and the refusal to hand over the custody amounts to illegal detention of the child and therefore, the writ of habeas corpus was the proper remedy available to him to seek redressal. 14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction. 32. In the case at hand, the father is the only natural guardian alive and has neither abandoned nor neglected the child. Only due to the peculiar circumstances of the case, the child was taken care of by the appellants. Therefore, the cases cited by the appellants are distinguishable on facts and cannot be applied to deny the custody of the child to the father. 34. As observed in Rosy Jacob earlier, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. The welfare of the child shall include various factors like ethical upbringing, economic well-being of the guardian, child's ordinary comfort, contentment, health, education etc. 34. As observed in Rosy Jacob earlier, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. The welfare of the child shall include various factors like ethical upbringing, economic well-being of the guardian, child's ordinary comfort, contentment, health, education etc. The child Shikha lost her mother when she was just fourteen months and is now being deprived from the love of her father for no valid reason. As pointed out by the High Court, the father is a highly educated person and is working in a reputed position. His economic condition is stable." 10. In the case of Vinayak Tripathi (supra), this Court in para 43 noted that the petitioner being a natural guardian and having family assistance, can look after the nurturing of the child in better way as compared to the grand maternal parents who are considerably old age persons. Relevant paras 43 and 47 are extracted below : "43. This Court has also noticed that the grand maternal parents i.e. respondent nos.3 and 4 are of considerable old age persons and it would be very hard for them to take care of a minor child, whereas petitioner no.2 being a natural guardian and having family assistance, can look after the nurturing of the child in better way. 47. It is decipherable from perusal of the record appended with the writ petition that the conduct and behaviour of the respondent nos. 3 and 4, so far as access of the child to his father is concerned, prima facie seems to be unexpected. It is not understandable that why the grand maternal parents are so adamant, not to give the custody of the child to his father as he does not seem to be unfit to be guardian, thus this is a best example of improper custody. " 11. In Smt. Manju Malini's case (supra), the detenue was detained by younger sister of the petitioner along with husband who refused to hand over custody of the minor to the petitioner who was a natural guardian. Relevant para 24 is extracted below : "24. The moment respondents 1 and 2 refused to handover the custody of minor Tanishka to the petitioner the natural and legal guardian, the continuation of her custody with them becomes illegal detention. Relevant para 24 is extracted below : "24. The moment respondents 1 and 2 refused to handover the custody of minor Tanishka to the petitioner the natural and legal guardian, the continuation of her custody with them becomes illegal detention. Such intentional act on the part of respondent Nos.1 and 2 even amounts to the offence of kidnapping punishable under Section 361 of IPC. Therefore there is no merit in the contention that the writ petition is not maintainable and respondent Nos.1 and 2 are in legal custody of baby Tanishka." 12. As regards judgment cited by learned A.G.A. in Reshu's case (supra), this Court held that in deciding the question regarding custody of the minor child, paramount consideration should be the welfare of the minor and such a question cannot be decided merely based on the competing rights of the parties under law. In that case also, the child since her infancy was living with her maternal grand father. Custody of the child was denied to the father for the reason that the father was charged as an accused for alleged murder of wife, mother of the detenue under sections 498-A, 304-B I.P.C. and sections 3/4 Dowry Prohibition Act, 1961 and therefore, in those peculiar facts, custody of the minor was refused by the court to the father. The judgment in the case of Reshu (supra) is distinguishable on facts and cannot be applied to deny the custody of the child to the father in the instant case. In the case in hand, it is not disputed that the deponent is the father and natural guardian of the detenu. It is also not disputed that he is running an industry in Kolkata. The facts that in order to secure appropriate medical health, the petitioner has taken a health insurance in the name of the detenu and his daughter, investment made in Sukanya Samriddhi Account as well as insurance policy purchased in the name of Kanika Guta are not disputed. It is also not disputed that under section 6 of Hindu Minority and Guardianship Act, particularly section 6-A thereof, natural guardian in case of a male child, is father. Further, the private respondents could not demonstrate that they have sufficient financial resources to provide proper education and upbringing to the detenu, as is being provided to his elder sister at Kolkata. Further, the private respondents could not demonstrate that they have sufficient financial resources to provide proper education and upbringing to the detenu, as is being provided to his elder sister at Kolkata. This court further cannot lose sight of the fact that in the first counter affidavit filed by private respondents, they have admitted the birth certificate issued by the Deep Hospital which shows that the deceased mother of the detenu was treated by a B.H.M.S. doctor and not by a Gynecologist, and subsequent affidavit filed with contradictory version along with a different birth certificate with same serial number will not help private respondents to demonstrate that they have taken adequate care of the deceased. The detenu here is only 2-1/2 years old and obviously is not in a position to make any judgment. 13. The submission of private respondents' counsel that handing over custody of the detenu to the petitioner/deponent would adversely affect his upbringing and further would affect him emotionally has no merit as Supreme Court in the case of Tejaswini Gaud (supra) while dealing with identical issue, in para 36, held that if the custody is not granted to the father, the court would be depriving both the child and the father of each other's love and affection to which they are entitled and with the passage of time, the child may develop more bonding with the father and if the custody is denied, then later on, the child may be reluctant to go to his/her father, in which case, the father will be completely deprived of the child's love and affection. Relevant para 36 of Tejaswini Gaud's case is extracted here-below : "36. The appellants submit that handing over of the child to the first respondent would adversely affect her and that the custody can be handed over after a few years. The child is only 1½ years old and the child was with the father for about four months after her birth. If no custody is granted to the first respondent, the court would be depriving both the child and the father of each other's love and affection to which they are entitled. As the child is in tender age i.e. 1½ years, her choice cannot be ascertained at this stage. If no custody is granted to the first respondent, the court would be depriving both the child and the father of each other's love and affection to which they are entitled. As the child is in tender age i.e. 1½ years, her choice cannot be ascertained at this stage. With the passage of time, she might develop more bonding with the appellants and after some time, she may be reluctant to go to her father in which case, the first respondent might be completely deprived of her child's love and affection. Keeping in view the welfare of the child and the right of the father to have her custody and after consideration of all the facts and circumstances of the case, we find that the High Court was right in holding that the welfare of the child will be best served by handing over the custody of the child to the first respondent." 14. In the present case, presently the detenu is 2-1/2 years old and his choice also cannot be ascertained at this stage. It is not disputed that baby Kanika Gupta is residing with the deponent who is nicely taking her care. In case the custody of the detenu is denied to the deponent, the court will be depriving both the father and the elder sister the company of the detenu and vice versa. Therefore, in peculiar facts of this case, the reasoning given in para 36 of Tejaswini Gaud's case (supra) applies in this case also. 15. Hence, in view of the law settled by the Supreme Court and keeping in view the overall welfare and upbringing of the child, the petition is allowed. Respondents 3 to 5 are directed to hand over custody of the child to the deponent forthwith. At this stage, learned counsel for respondents 3, 4 and 5 submits that they may be permitted to visit the detenu, to which, learned counsel for the petitioner has no objection. 16. Keeping in view the interest of the child as also the undertaking given on behalf of the petitioner, it is provided that respondents 3 to 5 will have visiting rights to the detenu. 17. The respondents 1 and 2 shall ensure compliance of this order.