S. Saghir Ahmad, J. - (1.) THIS is a petition in the nature of habeas corpus Under Article 226 of the Constitution.
(2.) THE facts of the case may first be stated in brief. Smt. Madhubala Srivastava, who is employed as a Typist in the Vidhan Sabha Sachivalaya, Lucknow, was married to opposite party No. 1 Ajeet Kumar Sinha on 19.02.79.
(3.) A son was born to them on 22.07.80 in the Dufferin Hospital, Lucknow. Smt. Madhubala Srivastava and Ajeet Kumar Sinha lived together at the latter's house up to 22.05.81 whereafter Smt. Madhubala Srivastava on account of relations having become strained, shifted to her parents' house at Bareilly taking the infant child with her. Ajeet Kumar Sinha and bid parents visited Madhubala Srivastava at Bareilly on 30.05.81 for a compromise. It is stated than when Smt. Madhubala Srivastava had been called inside by her mother, Sinha picked up the baby i.e. Master Man too, who is Petitioner in this case and left the place. It is further stated that opposite party No. 1 and his family members were approached for the return of the child but they denied that child was in their custody. On 05.09.81 an FIR was lodged against the opposite parties Under Sections 363 and 365 IPC. A search warrant was also issued but Master Man too could not be recovered. Smt. Madhubala Srivastava had to give up the pairvi of the case Under Section 363/365 IPC on account of the threats held out to her. Her father, who was also doing the pairvi of the case, was assaulted on 25.05.82. A case was also filed by Smt. Madhubala Srivastava, under the Guardian and Wards Act for the custody of the child but the case was also dropped by her on account of the threats held out to her and because she had come to know, in the meantime, that the child had been placed in the custody of somebody else. She recently came to know that the child was living with the opposite parties at their house No. 224, Arya Nagar, P. S. Naka Hindola, Lucknow and, therefore, this petition in the nature of habeas corpus has been filed for the custody of that child. It is stated that opposite party No. 1 who was in private service has since been removed from service while Smt. Madhubala was earning more than Rs. 700/ - per month and was, therefore, in a better position to educate the child and to look after him, It is not disputed that Master Man too has been living with his father since the time of his infancy. Admittedly, when the child was only few days old, the father (Ajeet Kumar Sinha) is said to have brought him at his place. It is also not disputed that the proceedings Under Section 363/365 IPC which were initiated by Smt. Madhubala Snvastava have since been dropped. The petition filed under the provisions of Guardian and Wards Act has also been dropped. As a matter of fact, as stated by the learned Counsel for the Petitioner the petition under the Guardian and Wards Act has been dismissed in default. 6. It is also not disputed by Smt. Madhubala Srivastava that Ajeet Kumar Sinha has since filed a divorce petition under the Hindu Marriage Act against her and that case (Reg. Suit No. 163 of 84) is pending in the court of Civil Judge, Lucknow. 7. It is in the above circumstances that the question of maintainability of the present petition has to be examined. 8. Section 4 of the Hindu Minority and Guardianship Act, 1956 (for short, Guardianship Act) defines word 'guardian' in Clause (b) as under: 4.(a).... (b) " guardian " means a person having the care of the person of a minor or of his property or of the both his person and property, and includes - (i) a natural guardian, (ii) a guardian appointed by the will of the minor's father or mother, (iii) a guardian appointed or declared by a court, and (iv) a person empowered to act as such by or under any enactment relating to any court of wards; Natural guardian" has been defined in Section 4(c). It provides that " natural guardian " means any of the guardians mentioned in Section 6. 9. Section 6 is in the following terms: 6. The natural guardians of a Hindu minor, in respect of the minor's person as well as 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 ; (b) provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother, (b) In the case of an illegitimate boy or an illegitimate unmarried girl -the mother, and after her, the father (c) in the case of a married girl -the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this: (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaparastha) or an ancetic (yati or sanyasi). Explanation: In this Section, the expression 'father' and 'mother' do not include a step father and a step mother. 10. Section 6 indicates that natural guardian of a boy or an unmarried girl is the father and after him, the mother. There is specific provision made in respect of a minor who has not completed the age of five years. It is provided that the custody of such minor shall ordinarily be with the mother i.e. even if father is alive and is, in all respects, fit to act as guardian, the custody of his child who has not completed the age of five years shall be with the mother. The legislature appears to be conscious of the fact that for an infant the warmth of mother's body was more important than the care of his father. A child learns to live in the lap of his mother. He builds up his future in his mother' lap. Ordinarily, therefore, the mother is to have the custody of the child who has not completed the age of live years. It is important to note that mother's right to custody of child who has not completed the age of five years is qualified by the word '' ordinarily " which clearly suggests that in appropriate cases the mother can be refused the custody of the minor, the paramount consideration in such cases being the welfare or interest of the minor. 11. In Smt. Chandra Prabha v. Prem Nath Kapoor : AIR 1969 Delhi 283 the custody of the minor who had not completed the age of five years was given to the mother in accordance with the provisions of Section 6 of the Guardianship Act. In Smt. Radhabai v. Surendra K. Mudaliar, AIR 1971 mys 69 it was laid down that Childs welfare was the primary factor and, therefore, unless there were special circumstances, Under Section 6 of the Guardianship Act, the custody of the child is to remain with the mother. 12. In view of the above, what is to be seen in the instant case is whether there are special circumstances as to justify the child with the father. 13. It will be noticed that the child was born at Lucknow on 22 -7 -80. Smt. Madhubala Srivastava left her husband's place on 22.05.81 i. e. when the child was hardly ten months old. A week later, however, the child is said to have been brought back by Ajeet Kumar Sinha to his house. The legal machinery was sought to be moved for the first time on 5.09.81 when an FIR was lodged Under Section 363/365 IPC against Abet Kumar Sinha and his near relations. We do not know what action was taken in the criminal proceedings but from the pleadings contained in the writ petition it appeal s that the child for whose recovery a search warrant was also issued was not recovered from his father's house. The petition filed under the Guardian and Wards Act for the custody of the child was allowed to be dismissed in default. This happened, as the learned Counsel for the Petitioner says, sometime in 1983. Thereafter a divorce petition (Reg. Suit No. 163 of 84) is said to have been filed by Ajeet Kumar Sinha against Smt. Madhubala Srivastava. The suit is being hotly contested by Smt. Madhubala Srivastava. In that suit, although she has moved an application Under Section 24 of the Hindu Marriage Act for payment of alimony, she has not filed any application Under Section 26 for the interim custody of the child. A copy of the plaint was placed before us by the learned Counsel for the Petitioner in which one of the grounds raised on behalf of Ajeet Kumar Sinha is that Smt. Madhubala Srivastava had deserted him and his son, Master Mantoo. It is not disputed that desertion can constitute a valid ground for divorce under the Hindu Marriage Act. The question whether Smt. Madhubala Srivastava had actually deserted Ajeet Kumar Sinha or her child, Master Mantoo, is a question of fact which is receiving the attention of the trial court in Reg. Suit No. 163 of 1.984. The fact remains that the child had all along been in the custody of his father Ajeet Kumar Sinha since 1981. Ajeet Kumar Sinha has thus brought up the child since the child was hardly ten months of age. The age of the child has been described in the memo of the petition as four years. If the child has been living with his father for the last 3 1/2 years, it would not be in the welfare and in the interest of the minor to place him in the custody of someone else or, for that matter, his natural mother, Smt. Madhubala Srivastava. 14. A Division Bench of the Madhya Pradesh High Court in Smt. Renu Vaid v. Ravi Vaid : AIR 1982 MP 81 has been laid down as under: In matter relating to the custody of minor, it is well settled that the paramount consideration is the welfare of the minor and not legal right of this or that party. The proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956 also raises_ a strong presumption that mothers' protection for a child of tender age is indisputable. There may, however, be circumstances in a particular case which rebut this presumption and in such a case welfare of the minor, although of tender age, lies in giving custody to the father.;