Decided on March 12,1970



- (1.) THIS is an application under Clause (C) of Article 133 (1) of the Constitution for a certificate of fitness for appeal to the supreme Court by the husband. What happened was that the wife filed a suit for judicial separation in the City Civil court at Calcutta and during the pendency of that suit the wife filed an application under section 26 of the Hindu marriage Act for custody of the two children born of marriage. It is an admitted position that these two male children were born on the 15th February, 1967 and on the 11th April, 1968 respectively. At the time of the institution of the suit and the application under section 26, the children were in the custody of the father. The learned judge in the City Civil Court held on a construction of section 6 Clause (A) of the Hindu Minority and Guardianship act, 1956 that the children being aged less than 5, they should ordinarily be in the custody of their mother. He further considered and found that the welfare of the children also demanded that the custody should be with the mother. He, there-fore, directed the husband to make over the custody of the two children to the wife.
(2.) AGAINST this interim order an appeal was preferred to this Court and we dismissed that appeal summarily under Order XLI Rule 11 of the Code of Civil Procedure and the instant application is in respect of this order.
(3.) MR. Apurbadhan Mukherjee, ilearned Advocate appearing for the husband petitioner states that substantial questions of law are involved and as such it is a fit case for appeal to the supreme Court. His main contention is that the learned Judge in the City civil Court had no jurisdiction to travel beyond the confines of the Hindu marrirge Act and rely on section 6 of the Hindu Minority and Guardianship act to find out in whose custody the children should be. We do not agree with this contention of Mr. Mukherjee. Section 5 (b) of the Hindu Minority and guardianship Act would show that the provisions of this Act shall prevail over "any other law in force immediately before the commencement of this act. . . . so far as it is inconsistent with any of the provisions contained in this act. " Admittedly, the parties are Hindus and so the learned Judge was perfectly justified in relying on section 6 of the Hindu Minority and Guardianship act. What is more, it is well settled now that it is the welfare of the children which should be the guiding principle in coming to a finding as to with whom the custody of the children should be and as ordinarily the custody of children aged less than 5 should be with the mother unless it is shown that she has forfeited her right. The learned judge considered the welfare of the children and as we have pointed out, he has come to a definite finding that the children should be in the custody of the mother. It may be that all the grounds which he had mentioned in his order may not be very substantial but still he has applied the law to the facts correctly and we do not find any substantial questions of law involved in this case which would induce us to take a different view and to grant the certificate prayed for.;

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