V.S. Malimath, J.
1. This is an appeal by the wife of the respondent against the order passed by the Civil Judge, Civil Station, Bangalore, In M. C. No. 20 of 1970 directing the appellant to hand over the custody of the child Saraswathi to the respondent-husband.
2. The respondent filed the suit on 8th of April 1970 against the appellant for restitution of conjugal rights under the provisions of the Hindu Marriage Act, 1955. The respondent also filed an Interim Application No. 1 on the 8th of April 1970 under Section 26 of the Hindu Marriage Act, 1955 and prayed for the custody of his child Saraswathi, who is about 3 1/2 years old, pending disposal of the main case. That application was seriously contested by the appellant-wife. The learned Civil judge has allowed the respondent's application and made an order for restoration of the custody of the child Saraswathi in favour of the respondent-husband.
3. It is the correctness of the order passed by the learned Civil Judge that is challenged by the wife in this appeal.
4. The appellant and the respondent were married sometime in the year 1965. The child, in question, Kumari Saraswathi was born on 1-11-1966. Thereafter, another male child was born sometime in July, 1968. It is not disputed that from about the date of marriage till about July, 1968, the wife was residing with the husband. After the birth of the second child, the wife has been residing with her mother. It is not disputed that the second child was with the mother till it died sometime in April, 1969. The case of the appellant is that the first child Saraswathi was also residing with her and that on the pretext of taking the child for a day or two, the husband took away Saraswathi and did not send her back. The case of the respondent, however, is that after the birth of the second child, Saraswathi was staying with him. It is unnecessary to consider, at present, as to which of the two versions is true. It is clear from the case put forward by both the parties that the child Saraswathi was residing with the father for about 1 1/2 years prior to the filing of the suit for restitution of conjugal rights. The father had put Saraswathi in a Kindergarten School where she was studying. On the 2nd of April 1970, the appellant took her child Saraswathi directly from the school and retained custody of her child with her. Immediately thereafter, the husband filed the suit on the 8th of April, 1970 as well as an application for the custody of his daughter Saraswathi.
5. Section 26 of the Hindu Marriage Act empowers the Court to pass interim orders in regard to custody, maintenance and education of minor children in any proceedings initiated under the Act. Section 26 does not indicate the circumstances which the court has to take into consideration for the purpose of making an interim order in regard to custody of minor children. When dealing with an application under Section 26 of the Hindu Marriage Act, in so far as it relates to the custody of a minor child, the primary consideration of the court should be to determine, having regard to all the facts and circumstances of the case as to what is in the best interest of the minor child. The primary and paramount consideration, though not the sole consideration for the court, must be the welfare of the minor child. The court has to bear in mind that it is not so much the question of the rights of the husband or the wife in respect of the custody of the minor child, as it is the question relating to the welfare of the child. It is only from the point of view of the welfare of the child that the court has to examine the facts and circumstances of the case and pass an interim order in regard to the custody of the minor child.
6. Section 6 of the Hindu Minority and Guardianship Act, 1956, provides that the natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property, are, - 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. This provision indicates that the policy of the law is that the custody of minors who have not completed the age of five years should ordinarily be with the mother. Minors who have not completed the age of five years are of tender age who can be best looked after by the mother. The effect of Section 6 is that in the absence of any special circumstances indicating to the contrary, it has to be presumed that the welfare of the minor who has not completed the age of five years will be best served if such a child is in the custody of its mother. It is therefore that the legislature has indicated its policy that the custody of minors who have not completed the age of five years should ordinarily be with the mother. Et is only if special circumstances are established indicating that it is not in the best interest of a minor who has not completed the age of five years to be in the custody of the mother that the court can consider if the welfare of such a child is best served by giving it to the custody of the father.
7. The child Saraswathi in this case is a Hindu who has not completed five years of age. The real point for consideration, therefore, is as to whether there are special circumstances in this case justifying the court to remove the child from the custody of her mother and to restore her to the custody of her father. The learned Civil Judge, after examining the contentions of the rival parties, has come to the conclusion that Saraswathi was properly looked after when she was with her father for about 1 1/2 years; that the mother did not make any serious efforts to meet her daughter during the aforesaid period of 1 1/2 years and that the mother is not in a position to look after the child properly- The mother has her own independent source of income as she is employed in the Mysore State Electricity Board. It is therefore not at all possible to take the view that the mother cannot afford all the necessary facilities to the child Saraswathi. The learned Civil Judge has not come to the conclusion that the mother is not affectionate with the child. It is not reasonable to infer, in the circumstances of this case, that the mother is not attached to her child. It is no doubt true that the appellant has not visited her husband's place to see her daughter. But then she has stated that she sent her brother and the mother to see and fetch her daughter. She has further stated that the members in her husband's family did not permit her brother and the mother even to have a look at the child. In these circumstances, the learned Civil Judge was not justified in drawing an inference against the appellant-mother from her conduct in not herself personally paying a visit to see her daughter. It is necessary to note that the mother herself personally went to the school and took the child directly from there to her house. This circumstance probabilises the case of the mother that she was very keen on having the custody of her child as she was very much attached to her child-This circumstance also probabilises the case of the mother that she was prevented by the husband and other members of his family from seeing the child. The learned Civil Judge, in my opinion, was therefore not justified in drawing an adverse inference against the mother from her conduct in not paying a visit to her husband's house to see her daughter. It is stated by the mother that her own mother and other members in the family are very much attached to Saraswathi and that they are looking after her quite well. Even though the appellant is employed, she has her mother all the time in the house who is there to look-after the child Saraswathi. In my opinion, none of the circumstances found by the learned Civil Judge, to which I have adverted above, are special circumstances justifying giving of the custody of the minor child Saraswathi to the respondent-father. The learned Civil Judge was therefore, not justified in making the order in question in favour of the respondent-husband.
8. The child, Saraswathi, was brought by the mother to the Court. When questioned by me, the child positively stated that she would like to live with her mother and refused to go and stay with her father. The child appears to be very much attached to the mother. If the child is taken away from the custody of the mother, it is likely that the child will also suffer mental strain. It would therefore be very cruel to snatch her away from the custody of her affectionate mother and to give her to the custody of the father.
9. For the reasons stated above, this appeal is allowed and the order passed by the learned Civil Judge is set aside. In the circumstances, the parties are directed to bear their respective costs.