G.P. Singh, C.J.
1. This is a petition by a mother for issuance of a writ of habeas corpus for custody of her minor son Vivek who is, for the time being, in the custody of the respondent, his father.
2. The parties come from well-to-do families. They were married at Indore on 12th Dec., 1976. The child was born on 23rd Dec., 1977 at Jabalpur in a nursing home. The petitioner's parents reside at Jabalpur. The petitioner's father is a M. E. S. Contractor. The petitioner and the child went to Indore sometime in Feb., 1978. The case of the petitioner is that she and the respondent went to Delhi in Oct., 1978. The respondent on 23rd Oct., 1978 disappeared with the child and came back to Indore. The petitioner returned to Indore on 26th Oct., 1978, but she was not allowed to enter the respondent's house. This story is denied by the respondent. According to him, the petitioner on her own left the matrimonial home with her brother on 21st Oct., 1978 without caring for the child who was then eleven months old. According to the respondent, the petitioner left for good and she came a few days thereafter and stayed in a hotel only with a view to get back her jewellery and woollen clothes. In our opinion, it is not necessary to decide the controversial facts here; very likely, there is a considerable overstatement by both the parties. There are two letters (Annexures 5 and 6) written by the petitioner to the respondent in Oct. and Nov., 1978. These letters appear to be normal letters. There is no complaint in them that the child was removed by the respondent when the parties were at Delhi. There is also nothing in them to show that the petitioner had left for good her matrimonial home at Indore and that she had no concern either for her child or her husband. It appears that from Dec., 1978 to June 1981 the relations of the parties met on various dates and efforts were made for reconciliation, but nothing came out of them. In Dec., 1978 and Oct., 1979, the petitioner sent parcels of woollen clothes for the child which showed continuing concern for the child. In November, 1979 she also sent some medicines for her father-in-law which he refused to accept. On 9th July, 1980 the respondent applied at Indore for divorce under Section 13 of the Hindu Marriage Act. The petitioner on 3rd July, 1981 applied in a Delhi Court for restitution of conjugal rights. On 9th July, 1981, the petitioner filed the present petition for custody of the child.
3. We tried our best that the parties should reconcile. Learned counsel for the petitioner made a statement before us that the petitioner is prepared to go unconditionally to the respondent. We were also informed that the petitioner withdrew her application for restitution of conjugal rights pending in Delhi Court on 13th Oct., 1981 as a step towards reconciliation. The respondent, however, was not that co-operative and we failed in our efforts to bring about reconciliation. We still hope that the parties who are well educated will for the sake of the child, if not for themselves, forget the past and will turn a new leaf and start living together. However, at this stage when the parties have not reconciled, we have to decide their dispute about the custody of the child.
4. We heard the learned counsel for the parties at length. We were referred to a number of cases. These cases are : (Dr. (Mrs.) Veena Kapoor v. Varinder Kumar Kapoor (1981) 3 SCC 92; Rosy Jacob v. Jacob, AIR 1973 SC 2090; Mohini v. Virender Kumar, AIR 1977 SC 1359; Saraswathibai Ved v. Shripad Ved, AIR 1941 Bom 103; Vasudevan v. Viswalakshmi, AIR 1959 Ker 403; Chander Prabha v. Prem Nath, AIR 1969 Delhi 283; Marggarate v. Chacko, AIR 1970 Ker 1 (FB); Radha Bai v. S. K Mudaliar, AIR 1971 Mys 69; Chacko Pulparampil v. Margarete Maria, AIR 1973 Ker 100 (FB); Veena v. Prahlad, AIR 1976 Madh Pra 92: Usha Devi v. Kailash Narain, AIR 1978 Madh Pra 24; Mekee v. Mckee, (1951) 1 All ER 942 (PC); J. v. C., (1969) 1 All ER 788 (HL) and S. (BD) v. S. (DJ), (1977) 1 All ER 656 (CA).
5. The general principle in matters relating to the custody of a minor is well settled that the paramount consideration is the welfare of the minor and not the legal right of this or that party. The cases referred to us all proceed upon this principle. We may also in this connection refer to the proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which provides that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. There is a strong presumption that mother's protection for children of tender age is indispensable. There may, however, be circumstances in a particular case which rebut this presumption and it may be held that the welfare of the minor, although of tender age, lies in giving the custody to the father. With these general observations, let us examine the facts and circumstances of the instant case. Whatever may be the reason, the child has been living continuously from the last week of Oct., 1978 with the respondent. In Oct., 1978 the child was only eleven months old and the learned counsel for the petitioner was candid enough in admitting that the child, who is now nearly four years of age, does not recognise the mother. The child is being educated in a good kinder-garden school (St. Paul School) at Indore which is at a short distance from the respondent's residential house. It is also not in dispute that the respondent is a well-to-do person. The parents of the respondent live with him and the respondent's mother is giving the child all motherly affection. The child was brought before us and we found him quite happy with the respondent and his grandmother. The petitioner is also well educated. She is B. Sc. B. Ed., M. A. She is employed as a teacher in a school at Jabalpur on a monthly salary of Rs. 450/-. She lives with her parents who are well-to-do. The important factor, however, against the petitioner is that whatever be the reason she left the child more than three years back and the child does not now recognise her. The handing over of the child to the petitioner at this stage would create many problems and the child would feel miserable in the petitioner's company until he starts recognising her as his mother. In these circumstances, we have reached the conclusion that the welfare of the child lies in continuing the custody with the respondent with liberty to the petitioner to see the child at Indore. We, therefore, order as follows:
(1) The respondent will have the custody of the child.
(2) The respondent will permit the petitioner to see the child either in his house or in the house of some common friend, such as Mahesh Das Ji whose name was suggested at the time of hearing, on Saturdays of Sundays or on holidays with liberty to the petitioner to have the child with her for about tour hours during day time. This opportunity shall be given to the petitioner atleast five times in a month. The petitioned will inform the respondent, by giving a prior notice of at least a week, when she wants to visit Indore and see the child. Any difficulty in the implementation of this direction will be settled by the District Judge, Indore, if an application for that purpose is made to him by either party.
6. As in custody cases no order is final, the parties can again apply for further direction if and when the circumstances change. There will be no order as to costs of this petition.