1. This writ petition is for issue of a writ of habeas carpus, directing the respondents to produce the child, Harihara Sudhan, before this Honourable Court and to deliver him to the petitioner and set him at liberty. The petitioner has alleged in the affidavit in support of this petition that she got married to the first respondent on 3rd September, 1976. The second respondent is her mother-in-law. A male child was born on 20th May, 1979, and its name is Harihara Sudhan. The petitioner has further alleged that the first respondent herein, under the instigation of the second respondent and his sister, meted out cruel treatment to the petitioner and that the first respondent abused her stating that she has not brought enough dowry from her parents. The petitioner has further alleged that, subsequent to the birth of the child, Harihara Sudhan, the first respondent inflicted both physical and mental agony on the petitioner, that the respondents removed the child, who aged about eleven mouths at the time, forcibly from the petitioner on 27th April, 1980, that the petitioner was beaten severely by the first respondent and that the first respondent sent the child through the second respondent to Neyveli, where his father is employed as the Chief Security Officer, Neyveli Lignite Corporation Limited. There is a specific allegation to the effect that, before sending the child with the second respondent they joined together and forced the petitioner to sign blank papers and, subsequently, sent the petitioner to Madras through one Police Constable by name M. Natesan. It is alleged by the petitioner that she is suffering very much due to the separation of her child and that the child, which is in the custody of the second respondent at Neyveli, must be given back to her. The petitioner has also stated that, as per Section 6(a) of the Hindu Minority and Guardianship Act, 1956, she is entitled to the custody of the child, since the child was only 11 months old. There is also an allegation in paragraph 10 of the affidavit in support of the writ petition that the petitioner apprehends danger to the child's life and health. With the above said allegations, the present writ petition was filed.
2. The first respondent has filed a counter-affidavit denying every one of the allegations mentioned in the affidavit in support of the writ petition, except those that were specifically admitted by him. As regards the marriage and the birth of the child, the first respondent has admitted the same. The first respondent flatly denied the allegation regarding the cruelty alleged to have been meted out by the first respondent to the petitioner. We do not think it is necessary to narrate the various idiosyncrasies of the petitioner alleged by the first respondent in his counter-affidavit. Suffice it to say that the child, according to the first respondent, is with his mother, the second respondent, from its birth and that it is the second respondent who is nurturing and protecting the child born to the petitioner, on 20th May, 1979. The first respondent has further alleged that the petitioner has refused to join him in spite of several requests and that she has not even cared to come and see the child. According to the first respondent, the second respondent, who is his mother, is staying with him and the child is also in his custody along with his mother, the second respondent. The first respondent has also stated that the petitioner has an alternative remedy available to her in law and that the present writ petition is misconceived.
3. The petitioner has come forward with a reply affidavit stating that she has also given birth to a female child on 7th October, 1980, and that the male child, who is a detenu now, was forcibly taken from her on 27th April, 1980, by the respondents herein. The petitioner has, no doubt, denied the various allegations referred to by the first respondent in his counter-affidavit.
4. The present writ petition is filed under Article 226 of the Constitution of India. This extraordinary remedy is always contemplated to give speedy, effective and efficacious remedy to the aggrieved party. If there is no such urgency, the ordinary course of law must take effect and this extraordinary jurisdiction cannot be resorted to. Thus, in given circumstances, the parties are at liberty to invoke the jurisdiction of this Court under Article 226 of the Constitution for necessary reliefs. We can presently discuss as to whether there is any urgency on the part of the petitioner herein to resort to the remedy under Article 226 of the Constitution. This is a ease in which the petitioner, who is the mother of the tender child which was born on 20th May, 1979, wants its custody. According to her allegation, she was sent out of the respondents' house, after the male child was forcibly taken away from her on 27th April, 19?0. Subsequently, that is, on 7th October, 1980, she has also given birth to a female child. No doubt, the petitioner has alleged that cruel treatment has been meted out to her while she was with the first respondent. As far as the tender child is concerned, for which a direction is prayed for, the first respondent has specifically alleged that from its date of birth, the second respondent, who is the mother of tie first respondent, is taking care of the child and that the child is in the custody of his mother and himself.
5. No doubt, Mr. R Subramanian, learned counsel for the petitioner, after referring to Section 6 of the Hindu Minority and Guardianship Act, 1956, states that the child, as per law, must be left in the custody of the petitioner herein. Section 6(a) of the Act reads as follows:
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).
(a) in the case of a boy or an unmarried girl the father, and after him, the mother; provided that the custody of the minor who has not completed the age of five years shall ordinarily be with the mother.
6. The words 'shall ordinarily be with the mother' is interpreted by stating that the child below the age of five must be with the mother and that, if such a child is left in the custody of some other person, it will be illegal. We are not able to subscribe to the interpretation that the custody of the child, below the age of five, if it is with the father, will ipso facto amount to illegal custody. In Funk and Wagnalls Standard Dictionary, the meaning for the word 'ordinarily' is given as 'in ordinary cases, commonly; usually; normally.
7. Hence, the custody of the child, which is below the age of five may be normally given to the mother. But, if the custody of such child is with the father, it will not be illegal. The reference to custody, when the legal guardianship vests with the father as provided under Section 7 of the Hindu Minority and Guardianship Act, 1956, clearly spells out the intention of the legislature to see that the interest of the minor is always taken into consideration for giving such custody. That is why, the words 'ordinarily be with the mother' have been used. Further, such custody of the tender child to be with the mother is only a preferential claim and the fact that it is with the father cannot make such custody illegal.
8. Mr. Subramanian, learned counsel for the petitioner cited the decision in Babubhai Patel v. Madhavi Patel : (1979)1MLJ244 . wherein a Bench of our High Court has observed:
The only other aspect on which counsel cited authorities was for the position that the attachment that certain persons may develop for the child when the child happened to be with them for some time, must not also have too much weight with the Court in deciding the welfare of the child.
Thus, the Bench has held that attachment alone cannot be a criteria for deciding the welfare of the child. We have absolutely no hesitation in accepting this proposition. A child of tender age cannot have the same weighing its welfare between two persons. Hence the averment as if the child has developed attachment with the second respondent in our opinion, cannot have any weight in deciding the present petition The next case cited by Mr. Subramanian is the one reported in Imtiaz Bana v. Masood Ahmed Jafri and Ors. : AIR1979All25 . In this case, the mother was preferred to have the custody of the infant sons. It is clear from the facts of this case that the father had sent out the mother of the infants and that he had also contracted another marriage with some other lady. As per Muslim law, the custody of the minor upto a certain age can only be with the mother Considering all these aspects a single Judge of the Allahabad High Court gave the custody of the children to the mo her. We do not think, the facts of this case will have any application to the present case on hand.
9. On the other hand, Mr. V. Sridevan, learned counsel for the respondents, cited the decision in D.P. Sampath v. Govindammal and two Ors. : AIR1952Mad98 . In this case, a Bench of our High Court, dealidg with a writ of habeas corpus filed under Section 491 of the Code of Criminal Procedure, wherein the petitioner who was the husband, wanted to get the custody of his wife aged about 17 years, observed : -
Though the custody in which the minor girl was kept might be technically illegal in the sense that her husband as legal guardian was prima facie entitled to custody, the facts of the case did not justify the passing of an order under Section 491 of the Code. The young woman, on the threshold of majority, had left her husband entirely of her own accord, disentitled with the treatment she was receiving from his mother and grandmother. The petitioner in the case was seeking really to exercise his legal right as guardian of his minor wife. It was eminently a fit case where he should be referred for his relief to the provisions of the Guardians and Wards Act, and Section 25 of that Act is specifically intended to give relief in such cases. Though the remedy under Section 491, Criminal Procedure Code, is open to any legal guardian who claims custody of a ward, there must be satisfactory evidence that the ward is in illegal or improper custody of such a kind as to justify an energent order by a Criminal Court under that section. To take any other view would be to constitute a criminal Court under Section 49', Criminal Procedure Code, into a Guardians and Wards Court acting under Section 25 of the Guardians and Wards Act, which lays down certain considerations for the guidance of the Court in such matters.
10 To the same effect Mr. Sridevan cited another case, Shaik Moidin v. Kunhadevi : AIR1929Mad33 . which was decided by a Full Bench of out High Court. In this case, the Full Beach observed:
In these circumstances we think it is quite unnecessary to interfere and my learned brother Jackson has pointed out in the course of the argument that if the father wishes to assert his rights he can try to set the court in motion locally where the witnesses could be seen and if necessary cross-examined under Section 25, Guardians and Wards Act. This application is dismissed.
In this Fall Bench decision an application was filed by the father to issue a writ of habeas corpus directing that the custody of his son age about 7 or 8 years should be delivered to him.
11. Considering the decisions cited above and also bearing in mind the provisions of the Guardians and Wards Act and the Hindu Minority and Guardianship Act, the proper forum for the present case will be the Court constituted under the above said two Acts and not the High Court exercising writ jurisdiction under Article 226 of the Constitution of India. This Court's jurisdiction to grant relief under Article 226 of the Constitution can be invoked only in cases where the other remedies available will not be as effective and efficacious as the one sought to be invoked under Article 226. As far as the present case is concerned, we have already extracted the facts alleged by the respective parties in their affidavits. Excepting a bad statement to the effect that the petitioner apprehends danger to the child's life and health, there is absolutely no other allegation to spell out imminent danger to the life or the physical or moral well-being of the detenu concerned. According to the allegation it could be seen that the child is in the care and custody of the respondents herein as and from 20th May, 1979. Admittedly the child is in the custody of the respondents as on date. The petitioner has come out of the house of the respondents leaving the child as early as on 27th April, 1980. No doubt, various other allegations have been levelled against each other in their respective affidavits. These are all matters which can be effectively gone into in a properly instituted petition before the appropriate forum under the provisions of the Hindu Minority and Guardianship Act, 1956, as observed in D.P. Sampath v. Govindammal and two Ors. ILR 952 Mad 468 : (1951) 2 MLJ 259. and in Shaik Moidin v. Kunhadevi : AIR1929Mad33 . it is better for the petitioner to invoke the jurisdiction of the Court under Section 6 of the Hindu Minority and Guardianship Act, 1956 to have the custody of the child instead of invoking the jurisdiction of this Court under Article 226 of the Constitution.
12. We have already held that the custody of the child with its father as at present, cannot be termed as illegal. As per law, the father is the natural guardian. Technically the custody has to be with the mother if the child is below the age of five. It is only a preferential claim as between the father and mother as regards the custody of the child. We do not find any extraordinary circumstance in this case to give relief in this petition which is filed under Article 226 of the Constitution of India. The relative merits of the claim for custody have to be discussed and decided after hearing the proper evidence that will be let in by the respective parties. This can be effectively done before the Civil Court constituted under the Hindu Minority and Guardianship Act and also under the and Guardian and Wards Act. The Court only can give effective, efficacious relief after assessing the evidence that may be let in by the respective parties regarding their preferential claims over the detenu concerned. Inasmuch as there is an effective, efficacious alternative remedy available for the petitioner to agitate her claim, we feel that the writ petition filed under Article 226 of the Constitution is misconceived.
13. Considering all these aspects of the case, this writ petition is dismissed. No costs.
14. If any petition is preferred by the petitioner, before the Civil Court for the custody of the child, the civil Court shall dispose of such petition as expeditiously as possible