Jagdish Sahai, J. - (1.) This a petition for a writ of habeas corpus and for an order under Sec, 491(1) (b), Cr. P. C. The petitioner Smt. Rita Rani Singh is the wife of the respondent Sri Raghuraj Singh. They have a child named Alka. The petitioner's allegations are as follows:
(2.) The relations between the parties became strained and they started living separately, the petitioner in Allahabad and the respondent at Bulandshahr. The respondent came to Allahabad in a taxi and on the 23rd of May, 1962, took the petitioner, their child Km. Alka and the petitioner's sister Merlin P. Tewari to an evening show at Palace theatre in Civil Lines, Allahabad, while the cinema show was on Km. Alka started crying and the respondent took her outside the cinema hall on the pretext of quietening her. He, however, did not return inside the hall and left with the child on his taxi for Bulandshahr. The present age of Km. Alka is 21/2 years. The petitioner made an application under Sec. 11 of the Guardians and Wards Act in the court of the District Judge, Allahabad for being appointed the guardian of Km. Alka. That petition was dismissed on the finding that the District Court of Allahabad had no jurisdiction to decide the case. On these facts the petitioner has prayed for the following reliefs:- (i) issue a writ, order or direction in the nature of Habeas Corpus commanding the opposite party to produce in this Court the minor child named Alka alias Babli, the daughter of the petitioner and the opposite party. (ii) deliver the child to the petitioner who is entitled to her custody. (iii) award cost of this petition to the petitioner and (iv) pass such other and further order as it deems fit and proper. Admittedly the order passed by the learned District Judge, Allahabad is appealable under Sec. 47 of the Guardians and Wards Act. Even if the petitioner acquiesced in the finding recorded by the learned District Judge, Allahabad, and does not want to file an appeal against that order in this Court, she can present a fresh application under Sec. 11 of the Guardians and Wards Act in the court of the District Judge, Bulandshahr, who would have .jurisdiction to try the same. The petitioner thus has got clear alternative remedy. We, therefore, enquired from Mr. Dubey as to why does he not avail of the alternative remedy provided by the law. The only answer that he gave was that the chances of the appeal succeeding in this Court against the order of the District Judge, Allahabad, were meagre and that in the event of his filing a fresh application under Sec. 11 of the Guardians and Wards Act he may not be able to obtain an interim order from that court transferring the custody of Km. Alka to the petitioner. Only because an interim relief cannot or would not be granted by the learned District Judge is no ground for admitting the present writ petition in disregard of the alternative remedy. In State of Orissa v. Madan Copal Rungta, A.I.R. 1952 S.C. 12 their Lordships held that no writ petition can be admitted only in order to grant an interim relief. It is true that there is no bar to the entertainment of this petition by this Court notwithstanding the alternative remedy but on merits also the petitioner has no case for a writ of habeas corpus or for an order under Sec. 491, Cr. P. C. Admittedly, the respondent is the father of Km. Alka and it cannot be said that the latter is in the illegal custody of the former. The writ of habeas corpus is a legal process designed and employed to give summary relief against illegal restraint of personal liberty. It is not the petitioner's case that Km. Alka is being detained against her will. In fact she can have no will at her age other than the one of her guardian who as we would show a little later is the respondent. Consequently, it appears to us that the petition is misconceived.
(3.) Learned counsel contended that the natural guardian of a female child aged 21/2 years is the mother and not the father and consequently the custody of the child with the father is unlawful. In support of this contention learned counsel has placed reliance upon Cl. (a) and specially the words italicized in Sec. 6 of the Hindu Minority and Guardianship Act, 1956, which reads as follows: "6. 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; . . . . . . . . . . . . Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section - (a) if he has ceased to be a Hindu, (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation. - In this section, the expression "father" and "mother" do not include a step-father and a step-mother." Learned counsel overlooks the use of the word "ordinarily" in the words italicized. There is no absolute bar to the custody of a child below five years of age remaining with the father. All that the words intalicised mean is that normally the mother would be entitled to the custody of the child less than five years of age but there is nothing either in Sec. 6 or any other provision in the Hindu Minority and Guardianship Act, 1956, or any other law which would render the custody of a child less than five years of age with the father an illegality. Sec. 6 of the Hindu Minority and Guardianship Act, 1956, clearly provides that the natural guardian of a minor, whatever be his or her sex of age, both in respect of her person and property, is the father. Therefore Mr. Dubey's contention that in the present case the petitioner, to the exclusion of the respondent, is the natural guardian of Km. Alka is not substantiated either by Sec, 6 of the Hindu Minority and Guardianship Act or by any other provision of law. In fact the position is just the reverse. There is a difference between a right to guardianship and a right to custody. Therefore even when the custody remains with the mother the guardianship is retained by the father and how and in what manner would the child be brought up and what would be for her welfare is for the father to decide. Therefore the position is that even though ordinarily Km. Alka should remain in the custody of the petitioner till she (Km. Alka) attains the age of five years, her (Km. Alka's) guardian is the respondent. In that view also it is difficult for us to accept the contention that the custody of Km. Alka with the respondent is illegal custody and amounts to unlawful restraint. We have already said that there is no inflexible rule that the father cannot have the custody of a child below five years of age. That being so we are unable to see how a writ of habeas corpus or an order under Sec. 491, Cr. P. C. can be issued in this case. It is contended that even though the guardian of Km. Alka be the respondent her custody should be transferred to the petitioner. For such a relief a petition for a writ of habeas corpus or an order under Sec. 491, Cr, P. C. is misconceived. The proper approach in such a case would be one under Sec. 11 of the Guardians and Words Act, i.e. for the appointment of a guardian or a suit in a competent court of law for the custody of the child.;