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Judgment
This is obviously a vexatious proceeding brought to unable the father to get out of his obligations under an order for maintenance to which he
himself consented. 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 is 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
that wife apparently, assuming that she is quite willing to treat her step-children properly, is constantly away. What is the result during those
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 any body 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.
In these circumstances we think it is quite unnecessary to interfere and my learned brother Jackson has pointed out in the course of the argument
that if the father wishes to assert his rights he can try to set the Court in motion ideally where the evidence would be much more easily obtainable
and where the witnesses could be seen and if necessary cross-examined u/s 25, Guardians and Wards Act. This application is dismissed.