1. This is a petition, under Article 226 of the Constitution for issue of a writ in the nature of a habeas corpus for production of the newly born male child in Court and a direction for giving custody of the same to the petitioner.
2. The facts leading to the present petition are that the petitioner, Smt. Veena Agarwal, aged 24 years, is M.A. in Hindi and is the daughter of Shri Amar-nath, who is Officer inoharge of the Punjab National Bank drawing a salary of Rs. 1500.00 per month, She was married to the respondent, Prahlad Das Agarwal on28-1-1973, who is at present a lecturer in P, G. Degree College, Satna. Thus, it is clear that the petitioner and her husband belong to respectable families. The male child whose custody is sought was born to the petitioner on 29-5-1975 at Satna. On 6-6-1975, serious difference arose between the husband and wife and according to the petitioner after giving a 'beating by her husband she was driven out from the house and the infant child was snatched from her custody by her husband. The petitioner went to the house of her parents at Parikshatgarh where her father is at present posted. According to the petitioner, she again joined her husband at Satna on 23rd June, 1975 in spite of her apprehensions that she would be maltreated and humiliated looking to the sense of desire expressed by the respondent for starting a new life for the sake of her child. On 9-8-1975, the petitioner was again beaten by her husband and driven out of the house. A report of the incident was lodged by the petitioner at Police Kotvali Satna (Annexure A). On the intervention of the police, she lived in the house of the respondent till some one from her parents could come to take her, because of her shattered health. However, the petitioner's father and brother-in-law (elder sister's husband) came to Satna on 12-8-1975. The persuasions did not prevail with the respondent and his family and the petitioner had to leave the house of her husband with a broken heart leaving the child, who was refused to be handed over to her by her husband. According to the petitioner, the child being in the feeding state from the mother's milk and there being nobody to look after it in the house of the respondent, she entertains an apprehension that in the absence of proper care the child would be deprived of the love and care of the mother which the respondent-father cannot in any case provide to him and she being his mother is entitled to his custody. According to her, the detention of the male child by the respondent is illegal, unwarranted and manifestly unjustified and she being the mother is best entitled to the custody of the child looking to his age.
3. On the other hand, the respondent-husband has come out with various allegations in his return against the petitioner which we need not repeat here being irrelevant to the issue involved. According to him, the child is being well looked after and his mother would be staying with him and he would also engage an Ayah to look after his son. Therespondent has further pleaded that handing over of the child to the custody of the petitioner would not be in the interest of the child. He has, therefore, pleaded for the rejection of the petition.
4. When the matter came up for hearing on 23-10-1975, we allowed time to the parties for reconciliation on the request of the learned counsel of the respective parties and, therefore, the hearing was adjourned for the next day. On 24-10-1975, when the matter again came up for hearing, we were informed that the reconciliation could not be arrived at. We also tried our best to bring about a reconciliation but the efforts were fruitless. In the circumstances, we were left with no option but to decide this petition on merits.
5. Having heard learned counsel of the parties, we are of opinion that this petition must be allowed. At the outset we would like to mention that in the nature of the present case it is not at all necessary for us to go into the details of allegations and counter-allegations of the parties. We are required to decide this, petition on the sole consideration in whose custody the welfare of the minor lies. Under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, it is provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. The clause gives legislative sanction to the principle which is now well established that although the father is the natural guardian of the minor child and entitled as such to his custody, the prime and paramount consideration is the welfare of the minor and the custody of a child of tender years should, therefore, remain with the mother unless there are grave and weighty considerations which require that the mother should not be permitted to have the minor with her. For applying the aforesaid rule we will have to look to the facts emerging from the petition and the return filed before us. The fact that the petitioner belongs to a respectable family is not in dispute and also her father is drawing a handsome salary. The petitioner has besides her father, her mother, four sisters but no brother. Out of these four sisters, first two are already married and the 4th and 5th studying in a college. The petitioner is the third daughter of her parents. The petitioner is staying with her parents. She herself is a highly educated lady. Therefore, it cannot be denied that if the custody of the male child is given to her she will not be able to look after him andthe welfare of the child would in any manner be in jeopardy. As regards the contention advanced on behalf of the respondent that even he can look after the child cannot be a ground for depriving the mother of the custody of the child in view of the provisions of Section 6(a) of the Hindu Minority and Guardianship Act, Even the basis stated by the respondent that he would be in a position to look after the child is not convincing. The petitioner is a lecturer and he will have to discharge his official duties by remaining away from his house. He cannot, therefore, feed the child in a manner which is expected of a mother. The contention advanced on his behalf is that he would keep his aged mother with him and also an Ayah who would be able to look after the child properly cannot be equated with the looking after of the child by his own mother. Besides that, looking to the salary a lecturer draws it does not appear feasible that the respondent would be able to keep an Aya. The mother of the respondent is of an old age, as stated before us, and she would not be able to properly look after the child. We are, therefore, not convinced that the respondent-father is in a position to look after his newly born male child in preference to that of the mother.
6. In Bhagwati Bai v. Yadav Krishna Awadhiya, AIR 1969 Madh Pra 23, a Division Bench of this Court has held as under :
'The writ of habeas corpus ad subjic-iendum, i.e., you have the body to submit or answer, is commonly known as the writ of habeas corpus. It is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it The detention of a minor by a person who is not entitled to his legal custody is treated, for the purpose of granting the writ, as equivalent to imprisonment of the minor. It is, therefore, not necessary to show that any force or restraint is 'being used against the minor by the respondent. In Gohar Begum v. Suggi Begum, (1960) 1 SCR 597 = (AIR 1960 SC 93) where the mother had, under the personal law, the legal right to the custody of her illegitimate minor child, the writ was issued,'
7. It is remarkable that neither side made any allegation against the moral character of the other. To us it appearsthat the mutual difference arise on account of domestic quarrel. The contention of the learned counsel for the respondent, that in view of the facts and circumstances of the present case, an enquiry was necessary into the allegations made by the respondent to judge whether the welfare of the child lies in handing over the custody of the child to his father or mother, in our opinion, is fallacious. Even after the decision of the case under the present proceedings it is open to the person aggrieved to seek an ordinary remedy. The ordinary remedy lies under the Hindu Minority and Guardianship Act or the Guardians and Wards Act, as the case may be, and it is only in exceptional cases that the rights of the parties to the custody of the minor shall be determined on a petition for habeas corpus, which is an extraordinary remedy. Looking to the age of the minor child, who is four months old, there is certainly imminent danger to his health and safety and as it appears from the conduct of the respondent that he wanted to prolong the decision of the present petition by advancing the aforesaid contentions. In the present proceedings we do not find anything for which, an elaborate enquiry is necessary by recording evidence etc. The facts on record speak for themselves. The underlying principle is that the guardian's claim to the custody of the child is not a right in the nature of property but, indeed, it is a right in the nature of trust for the benefit of the minor. For the reason stated above, we feel satisfied that it is not in the interest of the minor that the respondent should be allowed to take its custody and we are not in a slightest doubt that the care of this child will be taken much better if he is kept with his mother (petitioner).
8. We do hope that in future the petitioner and her husband would amicably settle their difference, both being highly educated, and would rejoin, to lead a happy family life.
9. For the reasons stated above, this petition is allowed. It is hereby directed that the respondent shall forthwith place the male child under the care and custody of the petitioner. We may mention here that the custody of the child was delivered as per our directions to the petitioner in an open Court. Under the circumstances, there shall be no order as to costs.