JUDGMENT Jagdish Chandra, J.
(1) In this petition under Article 226 of the Constitution of India read with S. 482 of Criminal Producer Code, 1973 the petitioner Snit. Narinita Kapur prays for the issuance of a writ of habeas corpus directing the respondents who are her husband and in-laws to produce her infant son Mohit aged Ii months and to hand over his custody to her. Anil Kapur respondent No. 1 is the husband of the petitioner, whereas respondents 2 and 3 Nand Kishore Kapur and Mrs. Janki Devi Kapur are respectively her father-in-law and mother-in-law.
(2) The petitioner and respondent No. I were married to each other on 21-9-1985 at New Delhi and the minor child Mohit was born to them on 14-8-1986. It is asserted that she was turned out of the matrimonial home by the respondents on 19-4-1987 and not allowed to return. Thereafter on 28-5-1987 a petition for divorce was filed by the husband against the wife on 28-5-1987 under S. 13(1)(ia) of the Hindu Marriage Act on the ground of cruelty which is pending. Yet another suit for permanent injunction was filed by the husband against the wife and her parents seeking to restrain them from entering his house allegedly on the ground that they had been harassing him and his parents by creating nuisance at his house.
(3) It is alleged that the infant child is only about 11 months old and is breast fed by the petitioner and is being kept away from her lawful custody and is being neglected mercilessly by being kept in the care of Ayah in a very unhygenic manner which is highly detrimental to the healthy growth of the Child and that the respondents are not at all bothered about the welfare of the child.
(4) The petition has been resisted by the respondents who have asserted that the ordinary remedy for the petitioner to claim the custody and guardianship of the minor was available to her under the Hindu Minority and Guardianship Act and/or under the Guardianship and Wards Act and that she has wrongly and with a mala fide intention chosen this extra ordinary jurisdiction of writ of this Court for this purpose in order to deprive the court from having a fair evidence on the record on the most important question of the welfare of the child. They have asserted that the child is being looked after very well by his father and grandfather who are assisted (herein by a maid servant who is about 50 years old and who has been with the respondents for the last about 30 years. They have also asserted that the petitioner is suffering from Asthama and keeping ill-health having depressions and hysteria, and is very moody, cruel and indifferent and has never given great feed to the child since his birth and has never cared to look after him even when he woke up in the night and that she abandoned the child at a very tender age without any lawful excuse, It is also asserted that on the morning of 19-4-1987 the petitioner, without the knowledge of her husband and of her own accord. left the matrimonial home abandoning thereby her husband and the child and did not thereafter care to visit and see the child. The filing of the divorce petition as also the suit for permanent injunction have been admitted. In the suit for permanent injunction ex-parte ad-interim injunction was granted whereby the petitioner's parents but not the petitioner, were injuncted from entering the house of the husband and from creating nuisance.
(5) We have heard the learned counsel for the parties In respect of this petition. No contention was raised by the learned counsel for the respondents in respect of the objection raised in the reply by them regarding resort to the extra-ordinary jurisdiction of this Court as against resort to the ordinary remedy available to the petitioner under the Hindu Minority and Guardianship Act and/or under the Guardianship and Wards Act with a mala fide motive to deprive this Court from having a fair evidence on the record on the main question of the welfare of the child. The learned counsel for both the parties conceded that for the decision of this writ petition the welfare of the child would be the only guiding factor.
(6) The most important factor in this case is the very young and tender age of the child who was born on 14-8-1986 and is about Ii months old and for a child of such a tender age the custody would be best suited only with the mother and this has been even given legislative recognition by the enactment of S. 6(a) of the Hindu Minority and Guardianship Act, 1956 whereunder the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. This provision is reproduced below :- "THE natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl--the father, and after him, the mother provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(7) There is a distinction between the 'custody" and the 'guardianship' which is a more comprehensive term than mere custody. So, even if the father is entitled to the guardianship of a minor, still the minor, if under the age of five years, is mandated by the legislature to be kept ordinarily in the custody of the mother. The legislature, after full consideration of the normal circumstances attending both the parents, has mandated the custody of the minor child below the age of five years to be ordinarily with the mother. Nevertheless, if the welfare of the child requires otherwise this normal rule in favor of the mother can be ignored by the courts as the welfare of the child is the paramount consideration in determining with whom the custody of the child shall be, as it is not so much the right of the father or the mother as the welfare of the minor which governs the courts in determining this question.
(8) In Thirty Hoshie Dolikuka v. Hoshiam Shavaksha Dollkuka the Supreme Court laid down as follows :- "THE principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor."
(9) The following passage occurring in Bailey, on Habeas Corpus, Vol. I, page 581, is very much apposite in this context :- "THE reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separated from him without the shadow of a pretence of justification; and yet the interests of the child may imperatively demand the denial of the father's right and its continuance with the mother. The tender age and precarious state of its health make the vigilance of the mother indispensable to its proper care; for, not doubting that paternal anxiety would seek for and obtain the best substitute which could be procured yet every instance of humility unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her offspring, is prompted by deeper and holier feeling than the most liberal allowance of nurses' wages could possibly stimulate."
(10) The "tender years rule' requires that the custody of the children of the tender age must be left with the mother Looking to the aforesaid authorities as also the law provided in S. 6(a) of the Hindu Minority and Guardianship Act, 1956 and the tender age of the infant in question the best interest of the infant as also his weal fare shall be served only by placing him in the custody of the mother who is the petitioner in this case. There is no disqualification of any sort disabling the mother from the custody of the child. The father of the infant has to remain away from the home on account of his business and the grandmother even along with the Ayah cannot be a proper substitute of the mother in the matter of the welfare and the custody of the child who would constantly need the protective and benign care of the mother in this tender age which is almost indispensable. Merely because the petitioner has suffered from asthama in April, 1986 as evidenced by annexure R-5 the prescription of Dr. K. L. Wig, it cannot be said that she is incapacitated to look after her infant son. Asthama is not a constant disease but, on the other hand, occurs twice or thrice a year and everybody is liable to fall ill twice or thrice a year from any other ailments of a temporary nature. The petitioner mother remains at home and lives with her well-to-do parents and there can be no difficulty in the bringing up of the child by her. The assertions that the petitioner suffers from depressions and hysteria were not pressed.
(11) Even if both the parents may be able to care best for the infant, the real welfare of the infant lies only in the custody of the mother.
(12) Admittedly, a temporary arrangement was agreed upon between both the parents of the child on 23-5-1987 which is evidenced by annexure R-2 and according to that arrangement the child was to stay during the day time with the mother petitioner from 9.00 A.M. to 7.00 P.M. where after the child was to be sent back by the mother to the father and the child would remain with the father during the night who would return the child every morning at 9.00 A.M. to the mother. This arrangement was to be only for a fortnight and then subject to review. The petitioner does not agree to the continuance of the said arrangement. This daily shifting of the infant child from ore parent to the other is obviously undesirable as it may prove unhealthy for the infant. The child cannot be treated as a chattel by the parents simply to assert their own rights in regard to the child. In Rosy Jacob v. Jacob A. Chakramakkal which was a case arising under S. 25 of the Guardian and Wards Act, 1890 the Supreme Court observed as follows :- ".....The children are not mere chattels : nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them."
(13) For the aforesaid reasons, we arc firmly of the view and are even convinced that the custody of the infant Mohit, viewed both from the legal provision contained in S. 6(a) of the Hindu Minority and Guardianship Act, 1956 as also from the welfare consideration lies only with the mother who is the petitioner in this case. The child is present in Court and we direct the respondents to band over his custody to the petitioner.
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