1. This is an application under Section 431, Criminal P. C. by one Chandrakant N. Randeria of Bombay for the custody of his minor son Vijay born on 14-7-1947. His allegation is that his son aged 3 years is unlawfully detained at Indore by one Hiralal Shah, opponent who is the grand father (mother's father) of the minor Vijay. The petitioner Randeria was married to opponent's daughter Damayanti at Broach in the month of May 1948. After the marriage the petitioner lived happily with his wife at Bombay and that during the said marriage one son and one daughter were born out of the lawful wedlock of the petitioner and Damayanti.
2. The petitioner's wife Damayanti died about the end of October 1949 at Bombay. Soon after the death of Damayanti, the opponent Hiralal Shah and his wife, the father and mother of the deceased, came to Bombay on a condolence visit. Hiralal and his wife stayed with the petitioner for 3 days at Bombay and at the time of his departure for Indore, the opponent Hiralal Shah requested the petitioner to allow him to take away the minor Vijay with him to Indore for a short period promising that Vijay would soon be sent back to Bombay. The petitioner out of deference to the wishes of his father-in-law and monther-in-law allowed them to take Vijay with them to Indore for a short stay.
3. After some time the petitioner wrote to the opponent to send back Vijay to Bombay but the opponent Hiralal Shah went on evading and invited the petitioner to come to Indore. The petitioner was annoyed with the attitude adopted by the opponent and being anxious about the custody and possession of Vijay, the petitioner went to Indore on 4-3-1950. The opponent Hiralal Shah refused to hand over the custody and possession of the minor Vijay to his father, the petitioner. The latter had to return to Bombay alone without his minor son Vijay.
4. On 26-4-1950, the petitioner wrote to the opponent that he wanted to perform the 'Mundan Kriya', (Hair cutting religious ceremony) of Vijay according to the family custom and the ceremony was fixed in May and hence Vijay should be sent to Bombay. The opponent did not pay any heed to these letters and requests and refused to send Vijay to his father at Bombay. Ext. A is a copy of the letter sent. Then on 10-5-1950 the petitioner through his advocate sent a notice to the opponent calling upon him to release Vijay from his illegal custody and detention. The opponent by his advocate's reply dated 11-7-1950 falsely stated that it was agreed between the petitioner and the opponent that Vijay was to stay with his grand parents and that it would be against the interest and welfare of the minor Vijay to remove from Indore to Bombay,
5. The petitioner denies any such agreement and contends that as the father and natural guardian of his minor son Vijay, he is in law entitled to custody and possession of his minor son Vijay. Further the interest and welfare of the minor require that he should be under the guardianship, control and custody of his father, the petitioner. The petitioner contends that the opponent has illegally and unlawfully and without the consent and against the wishes of the petitioner, detained Vijay and deprived the petitioner of his lawful rights of guardianship. He, therefore, prays that a direction in the nature of Habeas Corpus petition be issued against the opponent Hiralal Shah ordering him to release Vijay from his illegal detention and hand over the custody and possession of minor Vijay to the petitioner, his father.
6. The opponent Hiralal Shah in his reply to the petitioner's allegations contends that the minor Vijay was living with the opponent from the time deceased Damayanti left Indore by the end of first week of Sept. 1949 and from that time the minor is staying with his grand-mother. On the demise of Damayanti the minor was taken to Bombay and when the opponent and his wife went to Bombay on condolence visit on their return the minor was brought back to Indore as it was agreed between the petitioner and the opponent that the minor should be allowed to stay with his grand-mother (mother's mother) till such time as is necessary for the welfare of the minor son. The opponent denied having undertaken to send the minor Vijay back to Bombay as he was staying at Indore with his grand-parents as per agreement. The opponent contends that it is not in the interest and welfare of the minor to send him to Bombay.
7. The main question is whether the opponent is justified in keeping in his custody the minor unlawfully and against the wishes and consent of the father who is natural guardian of minor Vijay.
8. In my opinion the father is the natural guardian of his minor son and he cannot be deprived of the custody and possession of his minor son. The father is more interested in the welfare of his minor son and he is also under the obligation of maintaining him suitably to his means. The minor son is to be bred and brought up in the atmosphere and surrounding of his father and family and he is not to be estranged from his father. The character and education of the minor son is to be moulded by the father and hence under no circumstances can the grandfather (mother's father) deprive the father of the custody and possession of his minor son. The father cannot be deprived of the sacred trust of maintaining, rearing and educating his minor son. I am, therefore, of opinion that the moral welfare of the minor demands that he should re-main in the custody and control of his father,
9. Mr. D. G. Bhalerao argued that an application for habeas corpus under Section 491, Criminal P. C. is not the appropriate remedy, for the custody of the minor child. He contended that the petitioner should have presented an application under Section 25, Guardians and Wards Act. In my opinion there is no substance in this argument.
10. An application under Section 491, Criminal P. C. by the natural guardian for the custody of the minor who has been illegally detained by another person and detained against the wishes and consent of his natural guardian, is maintainable even if the remedy under the Guardians and Wards Act is open to him and has not been avail-ed by him In the first instance. This is the view taken by their Lordships of the Madras High Court in - Kama Iyer v. V. K. Nataraja Iyer AIR 1948 Mad 294 (A). In the case of - Rama Iyer v. V. K. Nataraja Iyer, (A) the father, as the natural guardian claimed the custody of the minor son who was unlawfully detained by his maternal grand-father and the Madras High Court held that the father's right to the custody of his minor son is in the nature of a sacred trust and their Lordships directed that the maternal grand-father should deliver the minor to the custody of the father.
11. The case before me is much stronger on facts. Here the minor child Vijay is only 3 years old and not In a position to form Intelligent preference. It is absolutely essential to the welfare of the minor Vijay that he should not be brought up in atmosphere hostile to the influence and affection of the father.
12. In - Subbaswami Goundan v. Kamakshi Ammal AIR 1929 Mad 834 (B) a Division Bench of the Madras High Court held that there is no rule of law that where there is a remedy provided by law, no other remedy should be resorted to because there is another remedy less expensive and less threatening. Thus the remedy under Section 491, Criminal P. C. is open to the husband who prays for an order directing to hand over his minor wife to him though he can as well have recourse to the provisions of the Guardians and Wards Act. It is pertinent to point out here the remarks of Bacon V. C. in - Bryant v. Bull (1879) 10 Ch D. 153 (C) that it did not matter how many remedies were open to a person -there might be 5000-he was entitled to avail himself of any one of them and that what had to be shown was that the remedy that he did avail himself of was not open to him.
13. I am fortified in my opinion by reference to the aforesaid authorities that the petitioner is entitled to come under Section 491, Criminal P.C. and there is no substance in the arguments addressed by Mr. Bhalerao on behalf of the opponent.
14. I am not inclined to believe having regard to the affidavits and also hi the circumstances of the case, that the father had agreed to hand over the custody of his minor son to the maternal grand-parents of the boy. It may be that for a short time out of deference to the sentiments of Vijay's maternal grand-parents, the petitioner may have allowed the grand parents to takeaway Vijay temporarily to Indore. But that does not mean that this temporary custody cannot be revoked. If the welfare of his child requires It, he can notwithstanding any agreement to the contrary, take such custody once more into his own hands.
15. There is nothing In the allegations made by the opponent that the father is unfit to be the guardian of the minor or there are circumstances which would go to show that he should be deprived of his sacred trust of bringing up and educating his minor son.
16. For the reasons aforesaid, I hold that the petitioner is entitled to the custody of his minor son Vijay and I consequently direct the opponent Hiralal Narottomdas Shah to deliver the minor Vijay to the petitioner's custody.