S.L. Talati, J.
1. Savitaben Laghar-bhai residing in village Sundariyana, Taluka Dhandhuka, District Ahmedabad has filed this petition to obtain the custody of her children Jaya, Nayna and Upendra. The facts which are not in controversy are first required to be stated. Respondent 1 is the husband of the petitioner. The marriage between the petitioner and respondent 1 took place before about 15 or 16 years. The petitioner is the second wife of respondent 1. By this marriage three children are born, two daughters and one son. The eldest daughter is 12 years of age while the second daughter is 9 years old and the youngest son is 5 years old. At the time when this petition was filed on July 8, 1982 all these three children were residing with the father i.e. respondent 1. The petitioner was residing separately and she had filed an application for maintenance under Section 125, Cr. P.C. in the Court of the Judicial Magistrate First Class at Dhandhuka which was pending. The above facts are admitted facts.
2. There are disputed facts as well. The disputed facts are that the petitioner made certain allegations in the petition and respondent 1 by filing an affidavit in reply denied those allegations. The disputed facts are not of much importance and they are not required to be dealt with for the purpose of proper determination of this petition.
3. It may here be stated that on 12-7-1982 when this petition was placed before this Court, notice was issued which was made returnable on 22-7-1982. A specific order was passed by which respondent 1 was directed to bring three children : Jaya, Nayna and Upendra in court on 22-7-1982. In response to that order respondent 1 had appeared and he had brought three children in this Court. During the pendency of this petition, interim arrangement was made by the parties by which Jaya and Nayna were kept in the custody of the petitioner-mother and Upendra remained in the custody of respondent 1 i.e. father. This arrangement is still in force.
4. On 18-8-1982 the petitioner and respondent 1 both had appeared in this Court and so also the children. On the previous dates and on 18-8-1982 an effort was made to bring about reconciliation between the petitioner and respondent 1 in order to see that the matrimonial ties may continue intact and respondent 1 and the petitioner might stay together and the children may get love from both but that effort failed. After that effort failed in presence of the learned advocates of the parties we recorded statements of Jaya and Nayna. The statement of Upendra was not recorded because he was too young. He was hardly five years old and, therefore, no questions were put to him. The facts which emerged from those statements were that respondent 1 was serving as a primary school teacher. This fact is also pot disputed. Respondent 1 is residing with his mother, sister, two sons who are fairly young and they are sons by respondent 1's first wife who had expired. The three children also resided with respondent 1. Thus the family consisted of respondent 1, his mother, his sister, two sons by first wife and three children by second wife. Admittedly the petitioner was not staying with respondent 1. On certain allegations which are made in the petition she was forced to leave and she was staying with her brothers and she has filed petition for obtaining maintenance, a copy of which is produced by respondent 1 in this matter.
5. From the statements of the children it was found that two young girls were sent to school but after they came up to vernacular IV standard they were not allowed to go to the school. The girls are asked to do domestic work. Both the girls stated that when the father was away in the school they were beaten by the mother of the father. One of the girls stated that whenever she went out to answer call of nature some one accompanied and she was not allowed to meet her maternal uncle who was residing in that very village. Elder girl made an allegation against the step-brother and stated that step-brother has misbehaved with the younger girl. When younger girl was questioned in regard to this matter she stated that the step-son misbehaved with her and when further questioned as to what she meant, she wept and had tears in her eyes. Both the girls stated that if they desire to go to meet her mother they were not allowed to do so. In regard to these statements the learned advocate Shri Padia for respondent 1 submitted that these statements are made at the instance of the petitioner and the statements were false and the statements were as a result of tutoring. We may only say that the questions were put in presence of the learned advocates for both the parties. It was not that this particular date was fixed for questioning these children. Therefore, it was hardly known as to whether the statements of the children would be recorded on this particular date. In fact all the while an effort was being made to bring about reconciliation between the petitioner and respondent 1 either in regard to their matrimonial differences or in regard to the custody of the children. When all efforts failed the statements came to be recorded. Both the girls were intelligent and they understood the nature of questions which we asked and they gave rational answers to every question. It could not be suggested that these young girls were deposing something which was false and which was the result of tutoring. Whenever there is tutoring there is always a narration in a sequence and the narration would be parrot-like. Here the questions were put and the answers were given. Nobody expected any sequence of any questions and there was no question of a parrot-like story. With these facts and the background that we have already stated the question that is required to be determined is as to whether the custody of these three minor children should be retained with the father or should be handed over to the mother.
6. The learned advocate Shri Padia with all emphasis submitted that under the Hindu Law the father was the guardian and therefore, unless he was disqualified he was entitled to the custody of the minor children. He referred to Section 6, Hindu Minority and Guardianship Act, 1956. Section 6(a), Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the Act) reads is under:
6. The natural guardians of a Hindu minor, 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; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
Now, therefore, this section speaks both of guardianship and custody. The guardianship of a minor boy and an unmarried girl is always of the father according to Section 6(a) which is quoted above. However, there is a proviso which says that though the guardianship may be of a father, custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Now. therefore, in this very section there are two concepts one is of guardianship and another of custody. In this particular case we are not dealing with the question of guardianship. We are dealing with the question of custody. If the son is round about five years as stated, the custody shall ordinarily be of the mother. That fact cannot be disputed.
7. The learned advocate Shri Padia for respondent 1 submitted that the jurisdiction of the Court cannot be invoked in this way inasmuch as Article 226 of the Constitution by which a habeas corpus petition is filed is a special type of jurisdiction and unless it was shown that the children were detained the petition would not He. It was being submitted that the detention would be equivalent to wrongful confinement and not mere restraint. It was submitted that unless the detention amounted to wrongful confinement such a petition was not maintainable. It was tried to be urged that the children were going to the school and in a lower middle class family it could be that the father may not afford to give more education to the females and they may be . asked to work at home and do household duties. Such an attitude of a father cannot be construed to be detention. Our attention was drawn to a case S. Rama Iyer v. K.V. Nataraja Iyer reported in AIR 1948 Mad 294 : 1948-49 Cri LJ 369. In para. 5 of that judgment it has been observed as under:
A child of the tender age of 13 years cannot be said to be able to form an intelligent preference particularly in a matter relating to his custody as against the wishes of his natural parents. The minor's opinion, especially when his attitude in refusing to go to his father is induced by his maternal grandfather with whom he is staying, is not entitled to any weight at all and thus when his consent has become ineffective, his detention, even if he remains in the maternal grandfather's custody of his free will, must be deemed to be illegal as against a person who is better entitled in law to have his custody, i.e. his father, and who is desirous to take the minor into his custody.
It was further held that the father of the minor ill-treated the minor's deceased mother is no valid ground for refusing custody to the father of the minor child. On the basis of this ruling the learned advocate Shri Padia submitted that in this case also intelligent preference, if any, given by the children Jaya and Nayna should not be considered and they should be considered ineffective against the father. We may say that there it was on facts held that the preference was because of an inducement given by the maternal grandfather. Further the choice was to be made between a natural father and a maternal grandfather. The facts disclosed that in the beginning the parties had agreed that the boy may be put in Sri Ramkrishna Mission High School Hostel, Thiagarayanagar, and the father was willing to bear all expenses of maintenance and education of the boy in that institution. However, in spite of numerous attempts made by the warden, the boy played truant and was persistently running away to the respondents' place. These circumstances are entirely different than the circumstances with which we are dealing in this particular case. Here the case is not a case of Father v. Maternal Grandfather. Here the case is that of Father v. Mother and the question before us is whether there is a case made out where such a petition is maintainable and further whether there is a case where we should prefer one against the other. We may here refer to a decision rendered by the Division Bench of this Court in Special Criminal Application No. 33 of 1972 decided on 11-2-1975. We may say that it was a case where on the date of the application the children were below 5 years of age and on the date of hearing of the petition they were above 5 years of age. The ratio in that case is required to be looked into. Firstly it was held as under:
The status of a guardian is a legal status while the custody of a minor raises a question of physical custody.
Further it was observed that in respect of physical custody, it is the mother who is to be preferred to the father and, therefore, when the Court is called upon to decide as to between the father and mother who should be entitled to the custody of a minor child, conceding that there is no allegation against either, and both are equally qualified, the balance tilts in favour of the mother because of a statutory provision. This was observed because the children in that case were below 5 years of age on the date on which application was filed. It was further held that in reaching a particular conclusion the paramount consideration should be interest of the child rather than the rights of the parents. The provisions of Section 6(a), Hindu Minority and Guardianship Act, 1956, were considered and on that point the Division Bench observed as under:
Law which generally lags behind social advances and haltingly stepped in by enacting Section 6 and took a small step of treating mother better suited for custody till minor attained the age of 5. Section 6(a) gives a legislative sanction to the principle well-established that even though the father is the natural guardian of his minor children and entitled as such to their custody and though it is the duty of the Court to make orders for appointment of a guardian and custody of the minor consistently with the personal law of the minor 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 would disqualify or disentitle mother from having custody of her minor children of tender age.
It was further observed as under:
The rights of the parties must be neglected to a subordinate position and in the background and the paramount consideration which should weigh with the Court in moulding its order is where the welfare of the minor lies and this is equally true when the Court is exercising jurisdiction under Article 226 of the Constitution.
In regard to the jurisdiction the Division Bench held:
If an objection to the jurisdiction of the Court is taken or if it is even urged that initially the petition was not sustainable, the Court must examine the contention and satisfy itself whether the petition was initially maintainable. But once the Court comes to the conclusion that the petition is maintainable, the ultimate order has to be moulded in accordance with the well recognised principle, namely, that the Court should not be swayed by the rights of the parties but by the paramount consideration of interest and, welfare of the minor. It is well-settled that custody of a minor can be obtained by a writ of habeas corpus if other conditions for grant or issuance of the writ are satisfied.
It was further observed that the Court is not powerless where an order is necessary for the welfare and in the interest of a minor and that if the Court feels that technically it had no jurisdiction to make an order as was contended in that case under Section 25, Guardians and Wards Act, the Court should exercise its general and inherent jurisdiction for the purpose and make the order as prayed for for the interest and welfare of the minor. The learned advocate Shri Padia submitted that this ruling of the Division Bench would not be applicable because in this particular case the children were above five years of age on the date on which the petition was filed. We may only say that once it is alleged that the minors are detained, the petition will be maintainable. Once the petition is filed which is maintainable it is required to be examined as to whether the children in fact were detained. If the children in fact were not detained the Court may in a given case dismiss the petition. However, if the Court finds that the welfare of the minor would require that the petition be decided, the Court will have the inherent jurisdiction to decide the matter.
8. Now in this particular case it clearly appears that the children were not allowed even to visit the maternal uncle's house which was in the same village and Jaya and Nayna both stated that they were not permitted to go to their mother. If this was the situation and the children were being prevented from seeing their mother, the petition was clearly maintainable. The Court had Jurisdiction both under Article 226 of the Constitution and Section 491, Cr. P.C. and it has also inherent jurisdiction to decide about the welfare of the children. Before we finally pass any order we may refer to a case of Magistrate Maria Pulparampil Nee Feldman v. Dr. Chacko Pulparampil reported in : AIR1970Ker1 . In para 20 the Full Bench of Kerala High Court observed as under:
In using the writ of habeas corpus for the custody of infants the jurisdiction exercised by the court in deciding whether the custody should be entrusted with one or the other of the contesting parties depends not on the legal right of one of these parties to the custody of the child but as to whether in the best interests and welfare of the child the custody should be entrusted with one or the other.
This observation of the Full Bench was based on the passages from the American Jurisprudenre. Vol. 25, pages 202, 203, 204 and 205 which in that judgment came to be quoted:
Habeas corpus is a proper remedy to obtain the discharge of an infant from a detention which is illegal and to determine controversies concerning the right to the custody of the infant, at least under the conditions requisite to the issuance of the writ generally. Where the writ is availed of for the latter purpose, the proceeding partakes of the incidents of a suit in equity and is considered to be one in rem, the child being the res.
The writ or habeas corpus is a proper remedy on the part of one parent to recover a child from the other parent, either before or after the parents have been legally separated or divorced. Since the welfare of the child is the primary consideration in making an award for the custody of it, such an award may be made in a habeas corpus proceeding without reference to where the domicile of the parents may be, and the fact that the infant was brought within the jurisdiction in violation of an order of the court of other State does not preclude the exercise of jurisdiction in a habeas corpus proceeding to make an order in respect of its custody, at least to the extent of determining whether changes in circumstances following the rendition of the foreign order require in view of the best interest of the child, a new order for the custody of the child, and whether the interest of the child can be served best by leaving further proceedings to the foreign court that acted first in the matter of its custody.
It should be observed that as a general rule, where the writ is prosecuted for the purpose of determining the right to the custody of a child, the inquiry extends far beyond the issues that ordinarily are involved in a habeas corpus proceeding. The controversy does not involve the question of personal freedom, because an infant, for humane and obvious reasons, is presumed to be in the custody of someone until it has attained its majority. The court, in passing upon the writ in a case involving the custody of a child, deals with a matter of an equitable nature; it is not bound by any more legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and; just. Therefore, these cases are decided not upon the legal right of the petitioner to be relieved, from unlawful imprisonment or detention as in the cases of an adult, but on the court's view of the best interests of those whose welfare requires that they be in custody of one person or another; and hence a court is in no case bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after a careful consideration of the facts, leave it in such custody as the welfare of the child at the time appears to require. In short, the child's welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to due consideration.
Now, therefore, it is for this Court to pass an appropriate order which would be in the best interest of the minors. On facts, therefore, the question which is posed is whether the two grown up girls aged 12 and 9 years respectively should be allowed to stay with their step-brothers. As admitted the father has to go for service during the whole day. The step-sons are aged 20 and 24 as admitted by both the parties. Both girls complained against the step-brothers. The second question which is required to be considered is whether the two girls should be separated from their younger brother when the facts show that the father who is a school teacher does not brother about the education of the girls. It is expected of a teacher that he knows the value of education. Normally if a father has a real feeling for the children he would like to see that his children are better educated than himself. In this case what we find is that the father who is a school teacher is contended by seeing that the girls worked at home and did not go to school after studying up to IV vernacular. We may only say that the arguments of the learned advocate Shri Padia that in a lower middle class family people do not afford to send the girls for education is an outdated argument. In this modern society when there is advancement all around the father who knows little of education desires that his children may grow up in a better atmosphere and be happier than he himself. A primary teacher would be at least expected to see that his child, would become a secondary teacher. That would be the minimum which is expected of a primary teacher in regard to the education of the children. It was submitted by the learned advocate Shri Padia that the mother is a hawker selling vegetables. It is not suggested to us that the mother has no love for the children. Here we are concerned with the custody of the children and if the mother is fully qualified and if the children are not safe at the house of the father the custody must be entrusted to the mother. The guardianship of the father might continue but that would only give rise to an obligation to feed not only the wife but the children. There are no rights created by the Hindu Minority and Guardianship Act, 1956. It only creates obligations on the parents in regard to their children. The parents do not have any right on the children. The parents only have obligation towards their children and that obligation is required to be discharged properly with care, with love and affection and devotion. If this is not done no society can function. Under these circumstances we are constrained to observe that respondent 1 has miserably failed to discharge his obligation towards the children of his second wife.
9. In the result we allow this petition and direct that the custody of all the three children be handed over to the petitioner. It is impossible to separate the two girls from their minor brother who is only aged 5 years. The three children should remain together and the custody of all the three children is directed to be handed over to the petitioner-mother. We may here say that by an interim arrangement the custody of two girls Jaya and Nayna is already with the petitioner-mother. That custody will continue to be of the petitioner and respondent 1 is now directed to hand over the custody of Upendra also to the petitioner.
10. There will be no order as to costs.
11. The learned advocate Shri Padia submits that this case may be certified and leave should be granted for preferring an appeal to the Supreme Court. We do not think that any substantial question of law of general importance is required in this case to be decided by the Supreme Court. Therefore, the request for the certificate is not granted. However, the status quo that is interim arrangement to continue for six weeks.