JUDGMENT : SUJIT NARAYAN PRASAD, J. 1. The instant criminal writ petition has been filed under Article 226 of the Constitution of India for issuance of writ of habeas corpus directing the respondent nos. 2-4 to immediately and forthwith release the minor son of the petitioner, namely, Abu Hamza, aged about 10 years, who has been illegally detained by the respondent no. 5 without having legal entity. Facts: 2. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated herein, reads as under: The marriage of the petitioner was solemnized on 18.03.2009 with Sadab Sadaf, daughter of Jalilrur Rahman, as per the Muslim Rituals and Law. The wife of the petitioner has left him, but, while doing so, she has given him a son namely Abu Hamza on 18.07.2013 for his survival and the son was studying in the Delhi Public School, Hazaribagh. The wife of the petitioner became ill and for better medical treatment in the month of October, 2023, the petitioner has bought her at Anjuman Hospital, Ranchi and her treatment continued for about 17 days in Ranchi and all the expenses were incurred by the present petitioner being the husband. Thereafter, when the wife of the petitioner did not recover, then on 11.11.2023, the petitioner himself sent his wife along with his brother-in-law to Vellore for her treatment by giving money to his brother-in-law for the expenses which would be incurred during the course of treatment as the wife of the petitioner asked him to stay at Hazaribagh only and take care of their only minor son. The wife of the petitioner could not survive and died on 17.11.2023. The last rituals of cremation of his wife was held on 18.11.2023 at Ranchi and when the petitioner along with his son and other family members came to Ranchi from Hazaribagh to attend the last rituals of his wife, then the brother-in-law and other relatives as well as miscreants had assaulted the petitioner and his relatives, even the brother-in-law of the petitioner had forcefully taken the son of the petitioner in their custody, as such, the petitioner having no option left, intimated to the same to the Officer In-charge, Lower Bazar Police Station, Ranchi, which was instituted as Lower Bazar P.S. Case No. 372 of 2023. The petitioner has lodged a criminal case being Complaint Case No. 2000 of 2020 against the respondent no. 5. In the aforesaid background, the instant writ petition has been filed for release of the minor son of the petitioner who, at present, is living with his maternal uncle. Grounds on behalf of the Petitioner: 3. Mr. Navin Kumar Singh, learned counsel for the petitioner has taken the following grounds: (i) Petitioner is the father of the minor son, as such, by taking aid of Section 6 of the Hindu Minority and Guardianship Act, 1956, learned counsel for the petitioner has submitted that petitioner is the natural guardian and is having a valid legal right to have the custody. But, in a highly illegal manner, the respondent no. 5, who happens to be the maternal uncle of the minor, has illegally detained him. (ii) The petitioner being the father is well capable of taking care of the minor having the financial viability as also part of the joint family. (iii) The maternal uncle is not so financially sound as also there is matrimonial dispute of the respondent no. 5 with his wife, hence, he alone is not in a position to look after the minor. (iv) The petitioner has spent his expenditure in the treatment of his wife right from the District of Hazaribagh and to the Christian Medical Hospital, Vellore but in course of her treatment, she died. (v) The minor was admitted in the Delhi Public School, Hazaribagh which is a school of repute and as such, being the father, he is taking all care for the purpose of his well-being. (vi) The ground has also been taken that the petitioner being the father is having the legal right and when he reached at the time of cremation of his wife along with his son/minor, then he was illegally kept by the respondent no. 5, hence, it is a case of illegal detention. (vii) Learned counsel for the petitioner has relied upon a judgment rendered by the Hon'ble Apex Court in Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others, (2019) 7 SCC 42 . Grounds on behalf of the Respondent No. 5: 4. Mr. Jitendra S. Singh, learned counsel for the respondent no. 5 assisted by Mr. Faiz Ur. (vii) Learned counsel for the petitioner has relied upon a judgment rendered by the Hon'ble Apex Court in Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others, (2019) 7 SCC 42 . Grounds on behalf of the Respondent No. 5: 4. Mr. Jitendra S. Singh, learned counsel for the respondent no. 5 assisted by Mr. Faiz Ur. Rahman, learned counsel has taken the following grounds in opposition: (i) The present writ petition is not maintainable seeking for a direction for issuance of writ of habeas corpus reason being that the writ of habeas corpus is to be issued if the detention is illegal. Herein, the detention cannot be said to be illegal since the minor is living with the maternal uncle who is taking care of the welfare of the minor. (ii) The minor will not be looked after properly if he will be allowed to remain with his father due to his conduct since he has taken no care and given no medical attention to his deceased wife at the time when she was suffering from acute disease which itself will be evident from the pleading made at paragraph-11 of the writ petition wherein it has been pleased that the deceased wife had been sent to the CMCH along with his brother-in-law, who is respondent no. 5 herein. (iii) It has been submitted that even at the time of chronic disease said to be incurable since the wife of the petitioner was suffering from acute malignancy then it was the bounden/moral duty of the petitioner to accompany his wife at least at the aforesaid time of the suffering, but, he has not taken pain to accompany his wife rather the brother-in-law had carried the wife of the petitioner to CMCH for providing treatment. From the aforesaid contention, it is very much clear that the petitioner is not a person having any interest for his wife, who is no more. (iv) The ground has also been taken that the minor is aged about 10-11 years and hence, the preference is to be given regarding the welfare of the minor over and above the legal rights. (iv) The ground has also been taken that the minor is aged about 10-11 years and hence, the preference is to be given regarding the welfare of the minor over and above the legal rights. (v) Further, as per the pleading, it would be evident that the writ petition has been filed on the pretext of applicability of the provision of natural guardian as per the provision of Section 6 of the Hindu Minority and Guardianship Act, 1956 but without examining the fact that the said act will not be applicable in a case of Muslim religion since the same is governed by the Guardianship of Person and Minority under the Mahomedan Law which contains a provision as under Section 3 defining therein the age of majority. So far as the issue of welfare of the child is concerned, the minor is living with all care and has also been admitted in a school at Ranchi, hence, the present writ petition is fit to be dismissed. Analysis: 5. This Court has heard the learned counsel for the parties, gone across the pleading made in the writ petition as also the affidavit filed in response to the pleading made in the writ petition. 6. The admitted fact herein as per the pleading made is that the petitioner is the father of the minor, namely, Abu Hamza, who is having the age of 10-11 years. The father claims that he is financially viable and having the business of 4 crores annual turnover. The wife has expired due to cancer. The minor at present is living with his maternal uncle. In such circumstances, the present writ petition has been filed for a declaration that the custody of the minor with the maternal uncle is illegal. 7. While on the other hand, the learned counsel for the respondent no. The wife has expired due to cancer. The minor at present is living with his maternal uncle. In such circumstances, the present writ petition has been filed for a declaration that the custody of the minor with the maternal uncle is illegal. 7. While on the other hand, the learned counsel for the respondent no. 5 has argued in opposition that the writ petition is not maintainable since the custody of the minor with his maternal uncle cannot be said to be illegal detention, as such, the issue of maintainability has been raised on the ground that there cannot be any declaration of illegal detention while the alternative remedy is there under the Guardians and Wards Act, 1890 for redressal of grievance since the issue pertains to adjudication of the fact whether the child will be taken care of so far as his welfare is concerned by the father or by the maternal uncle. 8. The preference/wish of the minor is to be given priority and since the minor is aged about 10-11 years, then, his wish is necessary which can only be appreciated by production of the child before the competent court of jurisdiction if a proceeding will be set in motion. But, admittedly, not under the writ jurisdiction which is summary proceeding based upon the pleading. Issue on maintainability of the instant writ petition: 9. This Court, therefore, is of the view that first the issue of maintainability needs to be decided as to whether in the facts and circumstances of the case, the present writ petition is maintainable for issuance of writ of habeas corpus. 10. The law is well settled in the case of Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others (supra) that even in a matter of custody, the writ of habeas corpus is well maintainable. Reference of the relevant paragraph needs to be made herein, which reads as under: “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. 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. 19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law. 20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.” 11. The law is also settled that under Article 226 of the Constitution of India, there is no embargo in exercising the power of privilege of writs rather the power under Article 226 of the Constitution of India is having no restriction and if any restriction is there, the same is self-imposed restriction by the High Court. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of Maharashtra Chess Association vs. Union of India and Others, (2020) 13 SCC 285 , the Hon'ble Apex Court has laid down that mere existence of alternate Forums, where the aggrieved parties may secure relief, does not create a legal bar on a High Court to exercise its jurisdiction, rather, it is a factor to be taken into consideration by the High Court amongst several factors. The decision, whether or not to entertain an action in its writ jurisdiction remains a decision to be taken by the High Court on examination of the facts and circumstances of a particular case. Mere existence of alternate Forums, where the aggrieved parties may secure relief, does not create a legal bar on the High Court to exercise its jurisdiction, rather it is a factor to be taken into consideration by the High Court amongst several factors. Paragraphs-19 and 22 of the aforesaid judgment read as under: “19....The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court's writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. Paragraphs-19 and 22 of the aforesaid judgment read as under: “19....The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court's writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or not to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case. 22. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors.…” 12. It is, thus, evident that the writ petition will be said to be maintainable in the following eventualities: (i) If there is violation of principles of natural justice. (ii) If the decision has been taken contrary to the statutory mandate. (iii) If the decision so taken amounts to miscarriage of justice. 13. It is also equally settled that where the disputed question of fact requires adjudication then, the writ court will restrain in proceeding the matter for adjudicating the issue. Such principle is based upon the fact that if a case is quite impossible to be decided based upon the pleading only then in such circumstances, it would not be just and proper for the High Court to exercise the power of Article 226 of the Constitution of India to adjudicate the issue which depends upon the factual aspect which needs appreciation by the competent court. 14. This Court has examined the factual aspect in the touchstone of the facts of the present case and the settled position of law so far as the guardianship of the minor is concerned. 15. The law is well settled that so far as the legal right is concerned, the father is the natural guardian. But, on the issue of guardianship, it is to weigh the welfare over and above the legal right and in case the High Court is of the view that a detailed enquiry if required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. But, on the issue of guardianship, it is to weigh the welfare over and above the legal right and in case the High Court is of the view that a detailed enquiry if required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others (supra). It also needs to be referred that upon the said judgment, reliance has been pleased by the learned counsel for the petitioner himself. 16. So far as the applicability of the judgment on fact is concerned, the same will be dealt with at the time when the issue on merit will be discussed. 17. So far as the fact of the present case is concerned, the minor is aged about 10-11 years and as such, he is in a position to say about his preference by expressing the same as to whether he wants to live for his well-being and welfare as per the ratio laid down by the Hon'ble Apex Court in Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others (supra), particularly, the observation so made at paragraphs-20, 21 and 26 of the said judgment, which reads as under: “20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus. 21. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus. 21. In the present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondent father is a natural guardian of the minor child and is having the legal right to claim the custody of the child. The entitlement of father to the custody of child is not disputed and the child being a minor aged 1½ years cannot express its intelligent preferences. Hence, in our considered view, in the facts and circumstances of this case, the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India. Welfare of the minor child is the paramount consideration 26. The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child.” 18. It is, thus, evident that what has been submitted by the learned counsel for the respondent that the present petition is not maintainable, this Court is not in agreement with such submission on the ground that the writ petition is maintainable even in the case of the guardianship so as to come to the conclusion as to whether on the basis of the fact, appropriate direction is to be passed by the writ court merely on the ground that the father is the natural guardian so as to come to the conclusion that where the welfare of the child will be better. As such, in order to come to the conclusion by relegating the petitioner to move before the alternative forum, the factual aspect is required to be scrutinized so as to come to the conclusion that there can be any direction by this Court for issuance of writ of habeas corpus. 19. As such, in order to come to the conclusion by relegating the petitioner to move before the alternative forum, the factual aspect is required to be scrutinized so as to come to the conclusion that there can be any direction by this Court for issuance of writ of habeas corpus. 19. The issue of maintainability of the writ petition for the issuance of writ of habeas corpus is one thing and not agreeing with the view of the petitioner taking into consideration the intelligent preference of the minor is another thing so as to come to the conclusion as to whether it is a fit case to relegate the matter before the competent court of civil jurisdiction for redressal of grievance, therefore, this Court is of the view that the writ is to be maintained and accordingly, the writ petition is maintainable. Discussion on Merit: 20. It is evident from the pleading that the basis of grievance is the provision of Hindu Minority and Guardianship Act, 1956. The petitioner is seeking the writ of habeas corpus on the basis of his legal right as per Section 6 of the Act, 1956. But, when the Court has confronted the learned counsel for the petitioner that when the petitioner is having different religion which is to be governed under the Mahomedan Law then how the provision of Hindu Minority and Guardianship Act, 1956 will be applicable. Learned counsel for the petitioner has submitted that it will not be applicable but the principle will be same. But, this Court, is not in agreement with such submission reason being that under Section 6 of the said act, the natural guardians of Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property, is the mother up to the age of five years. 21. The argument has been advanced that as per Section 4 of the said Act, the minor means a person who has not completed the age of eighteen years while under Section 6 of the said act, up to the age of five years, the minor shall ordinarily be with the mother. 22. It has been submitted that the argument is based upon the principle that who will take care of the minor whether the father or the maternal uncle since the mother is no more. 23. 22. It has been submitted that the argument is based upon the principle that who will take care of the minor whether the father or the maternal uncle since the mother is no more. 23. Learned counsel for the petitioner has relied upon the judgment rendered by the Hon'ble Apex Court in Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others (supra) in order to buttress his argument that the natural guardian is the father. 24. This Court, after going across the judgment rendered by the Hon'ble Apex Court in Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others (supra), is of the view that the said judgment on the one hand has laid down the ratio with respect to maintaining a writ petition for the purpose of issuance of writ of habeas corpus while on the other hand the issue on fact has been considered by taking into consideration the age of the minor. 25. It needs to refer here that the applicability of the judgment rendered by the Hon'ble Apex Court on facts is the subject matter for consideration as to whether on fact the judgment is applicable with the facts of the present case which is on the principle that the applicability of the judgment is to be tested on the basis of the facts governing the case as has been held by the Hon'ble Apex Court in Dr. Subramanian Swamy vs. State of Tamil Nadu and Others, (2014) 5 SCC 75 , wherein at paragraph-47 it has been held which reads as under: “47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.” 26. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.” 26. At the outset, it needs to be referred herein that the said judgment is with respect to Hindu Minority and Guardianship Act, 1956 but even for the purpose of following the principle as laid down in the aforesaid judgment, it would be relevant to refer herein that the Hon'ble Apex Court has been pleased to hold as under paragraph-19 that habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor is made by a person who is not entitled to his legal custody. For ready reference, paragraph-19 of the said judgment is being referred as under: “19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.” 27. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.” 27. At paragraph-20 of the said judgment, the Hon'ble Apex Court has been pleased to hold that in cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. The Hon'ble Apex Court has further been pleased to observe the difference between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. It has been further been observed that in the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. The relevant paragraph, i.e. paragraph-20 has been quoted and referred above. Further observation is that what is important is the welfare of the child but predominant consideration is the intelligent preference of the child which has also been taken note by the Hon'ble Apex Court in Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others (supra). 28. It further appears from paragraph-26 wherein emphasis has been given upon the welfare of the minor child by making observation therein that the child custody cases are not bound by the mere legal right of the parent or guardian but the intelligent preference of the minor is the paramount consideration. 29. So far as the issue of welfare of child is concerned, the same is also of paramount consideration but the same is also to be taken into consideration on the basis of intelligent preference of the child. 29. So far as the issue of welfare of child is concerned, the same is also of paramount consideration but the same is also to be taken into consideration on the basis of intelligent preference of the child. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Kirtikumar Maheshankar Joshi vs. Padipkumar Karunashanker Joshi, (1992) 3 SCC 573 wherein the fact of the case was that the father of the children was facing charge under Section 498-A IPC and the children expressed their willingness to remain with their maternal uncle who was looking after them very well and the children expressed their desire not to go with their father. The Hon’ble Supreme Court found the children intelligent enough to understand their well-being and in the circumstances of the case, handed over the custody to the maternal uncle instead of their father: “7. Pursuant to our order dated March 27, 1992 the children namely, Vishal and Rikta are present before us in these chamber-proceedings. Their maternal uncle Kirtikumar and their father Pradipkumar are also present. Vishal and Rikta both are intelligent children. They are more matured than their age. We talked to the children exclusively for about 20/25 minutes in the chamber. Both of them are bitter about their father and narrated various episodes showing ill-treatment of their mother at the hands of their father. They categorically stated that they are not willing to live with their father. They further stated that they are very happy with their maternal uncle Kirtikumar who is looking after them very well. We tried to persuade the children to go and live with their father for some time but they refused to do so as at present. After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage.....” 30. So far as the applicability of the judgment rendered in the case of Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others (supra) is concerned, therein while allowing the custody in favour of the father, the Hon'ble Apex Court has taken into consideration the age of the child who was aged about 1½ years old and her choice cannot be ascertained at the 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. 31. It is, thus, evident that the primary consideration for the court while considering the issue of guardianship is the welfare of the minor which will depend ultimately upon the intelligent preference as has been held by the Hon'ble Apex Court in Kirtikumar Maheshankar Joshi vs. Padipkumar Karunashanker Joshi (supra). 32. Much emphasis has been given by the learned counsel for the petitioner in the case rendered in Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others (supra), therefore, it is the bounden duty of the Court to consider the factual aspect so as to come to the conclusion whether the said judgment based upon the facts is applicable in the facts and circumstances of the present case or not. 33. In the said case, the minor was having the age of one and a half years and was living with her maternal aunt and at the time when the mother of the minor was seriously ill suffering from malignancy, the father of the minor has left her with the appellants and after her death, he has demanded custody of the minor. The Hon'ble Apex Court by making observation that the legal right will not be allowed to prevail over the welfare of the minor as also it has been observed that the preference is required to be considered of the minor but since the minor was aged about one and a half years, as such, was not in a position to express her intelligent preference and in that view of the matter, the custody of the minor was handed over to the father. 34. 34. But, herein, the fact of the case is totally different since herein the age of the minor is 10-11 years who is competent enough to express his intelligent preference. While in the case of Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others (supra), the age of the child was 1½ years and hence, the child was not in a position to express her preference which led the Hon'ble Apex Court to handover the custody of the child in favour of the father. But, herein, since the child is having the age of 10-11 years and is capable enough to express his preference of living either with his father or with his maternal uncle but the said issue is required to be decided by the concerned court of civil jurisdiction by leading evidence. 35. The Hon'ble Apex Court in the case of Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others (supra) has been pleased to observe that the issue of guardianship is not fit to be decided in a summary proceeding rather the same needs to be decided by the competent court of civil jurisdiction in view of the fact that adjudication is required of so many things as also intelligent preference of the minor. 36. It is also not the case herein that the minor is not in a position to express his preference which this Court cannot record in a summary proceeding even if the Court intended to record in a proceeding under the writ jurisdiction, the same according to our considered view, will not be just and proper on the ground that opinion is to be made by the concerned court who is to come to the conclusion as also by appreciating the other documents which has got bearing in the welfare of the child. 37. 37. This Court, on the basis of the discussion made above for the aforesaid purpose and on appreciation of the factual aspect involved in this case with the facts of the case of Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others (supra), is of the view that the it is quite different and hence, on fact it will not be proper for this Court to pass similar direction by handing over the custody of the minor in favour of the writ petitioner based upon the consideration on fact by the Hon'ble Apex Court in the case of Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others (supra). 38. Learned counsel for the petitioner has taken the ground that he is living in a joint family having good financial viability of the business of worth Rs. 4 crores annually, the grand-mother is also alive and as such, the minor will well be taken care of under their guardianship. While on the other hand, the allegation has been levelled against the petitioner on behalf of the respondent of subjecting his wife to cruelty and not providing proper treatment. 39. It is evident that the adjudication requires appreciation of the factual aspect including the wish which is to be expressed by the child so as to assess the intelligent preference as the minor is old enough to express his preference. The aforesaid fact, therefore, needs adjudication based upon the appreciation of the fact, hence, it will not be proper for this Court to exercise the extraordinary original jurisdiction by issuance of writ of habeas corpus. 40. Accordingly, the instant writ petition stands dismissed. 41. Pending interlocutory application, if any, also stands disposed of. 42. However, it is left open upon the petitioner to move before the appropriate Court of Law for redressal of his grievance. I agree - Pradeep Kumar Srivastava, J.