Kan Singh, J.
1. This is an appeal under Section 28 of the Hindu Marriage Act, 1955, hereinafter to be referred as the 'Act', by one Smt. Gheesi against an order of the learned District Judge, Ajmer dated 14-11-69 passed under Section 26 of the Act disallowing the appellant's application for restoration of the custody of her minor son.
2. Smt. Gheesi and the respondent Shri Rama were married according to Hindu rites on the Akhateej of the year 1962. The couple appears to have lived peacefully till January, 1967. A son was born to them and he was two years old on the date of the presentation of an application under Section 10 of the Act by Shri Rama against Smt. Gheesi for judicial separation. After sometime trouble arose between the spouses and on 11-5-69 Smt, Gheesi had to leave the husband's house at Pushkar and started living with her parents at Ajmer. She averred that as she was turned out, she could not bring the child with her. During the pendency of the application for judicial separation she applied for the custody of the child on 29-9-69- The learned District Judge ordered the production, of the child and the child appeared in his Court. The child was below 5 years of age at the time. The learned District Judge recognised that normally the custody of an infant below 5 years has to remain with the mother, but in view of the fact that the child had not been living with the mother since 11-5-69 or so, he felt that the child might not even recognise the mother. He, therefore, made the child weep and then left him to go to one of the two women namely, his mother and the grandmother who was present in Court. The child went to the grand-mother. The learned District Judge, therefore, felt that the child was not able to recognise the mother at all. Accordingly, he allowed the child to remain in the custody of his father as he was, as he thought that to be in the interest of the child. I may read the relevant portion of the judgment of the learned District Judge:--
'He is actually below five years of age. He should ordinarily be in the custody of the mother as required by the proviso to clause (e) of Section 6 of the Hindu Minority and Guardianship Act, 1956. The difficulty, however, is that the child has not been living with the petitioner since 11-5-69 or may be since February, 1967 and he may not be even recognising his mother. In order to find out this and to see what shall be in the interest of the minor, the child was called to the Court. . He was then made to weep and was then left to go to one of the two women one of whom was the petitioner and the other was his grand-mother. The child went to the grand-mother and did not recognise the petitioner, at all. I, therefore, prefer that the child remains where he is at the moment, this being in his interest.'
With all respect I am unable to approve of the experiment that the learned Judge had done in the Court to find out the leanings or the inclinations of the child. It has to be remembered that the child was of tender years. The mother was fostering and keeping the child till she left the home of her husband. Only a few months thereafter she made the application for restoration of the custody of the child to her. In the case of a child below 5 years of age normally the custody should remain with the mother. It is only under exceptional circumstances when the welfare of! the child demands otherwise that the custody of the child of tender years has to be allowed to remain with another. In dealing with an application under Section 26 of the Act in the case of a Hindu the, Court has to be guided by the considerations underlying the Hindu Minority and Guardianship Act, 1956. Section 6 of the Hindu Minority and Guardianship Act lays down who the natural guardians of a Hindu minor are.
Sub-section (1) of the section lays down that in the case of a boy and an unmarried girl the father and after him the mother would be the guardian, provided that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. Section 13 of this Act lays down that in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration and no person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor. This section emphasises that the powers of the Court are to be exercised for the welfare of the minor which should be the paramount consideration in the appointment and declarationof any person as guardian of a minor;. Section 5 of the Hindu Minority and Guardianship Act, 1956 lays down that the Act shall have an overriding effect. It is provided therein that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. Sub-section (b) of Section 5 of this Act further lays down that any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
Since the Hindu Marriage Act, 1955 was an Act in force when this Act came into force, the provisions of this Act namely, the Hindu Minority and Guardianship Act shall prevail over the Hindu Marriage Act, 1955 to the extent there is an inconsistency. Viewed in this light the order that the Court passes under Section 26 of the Act regarding the custody of the children will be subject to any order that a competent Court may pass under the Hindu Minority and Guardianship Act, 1956. The child is now almost 5 years old. According to the petition, he was 2 years old on the date of the petition. The petition was made on 31-5-69. Thus, the age of the child will now be approximately 5 years. I am, therefore, not inclined to interfere with the order of the learned District Judge dated 14-11-69. The appellant shall, however, be at liberty to pursue her remedy under the Hindu Minority and Guardianship Act, 1956, if so advised.
3. The appeal is, therefore, hereby dismissed. There shall be no order as to costs.