MADHOO Vs. KALLOO

JUDGEMENT

(1.) LEARNED counsel for the opposite party Sri S.P. Dubey is present along with opposite party Sri Kalloo. Learned counsel states that Smt. Madhoo daughter of late Sri Puttu Lal is Kalloo's married wife. He also admits that she gave birth to a child allegedly aged about 1 year to 9 months, and the child is in the custody of his client Kalloo, who is the father of the female child named Rekha. Learned counsel states that the age of the child is 3 years and not 1 year 9 months. The child is present in Court. Since the child is less than five years of age, and, as such, the preferential natural guardian of the child is her mother Smt. Madhoo, who is also present in Court. She is identified by her counsel Sri R.K. Misra, Advocate. The husband of the applicant Smt. Madhoo is identified by his counsel Sri S.P. Dubey, Advocate. The prime consideration in the matter relating to custody of a child less than five years of age is the welfare of the child. The mother has got the preferential right to have custody of the child who has not completed the age of five years in view of proviso to sub -clause (a) of Section 6(1) of the Hindu Minority and Guardianship Act. The opposite party No. 2 Sri Kalloo has, therefore, no right to keep the child away from the custody of her mother Smt. Madhoo. He cannot keep the child in his custody against the wishes of the mother who, keeping in view the welfare of the child, legally enjoys pre -emptive preferential right to have the said minor child in her custody. Thus, the detention of the child Kumari Rekha by the father Sri Kalloo in his custody against the wishes of the applicant -mother being unwarranted in law cannot be sustained and the child deserves to be set free and removed from the unwarranted custody of the father and to be given in the custody of the mother applicant.

(2.) THERE also appears no merit in the contention that since after completion of five years of age, the father, in view of Section 6(1)(a) of the said Act would have a right of custody of the child and, as such, the mother be directed that on completion of five years of age Kumari Rekha be given in the custody of the father. The said provision, in my opinion be not understood to suggest that on completion of the age of five years the custody of the child should be directed to be handed over to the father in view of his alleged preferential right. The proposition is now firmly settled that even the preferential right of father of the child as natural guardian shall be subordinated to and even overridden by the sole consideration that the welfare of the minor is to be determinative factor in all these matters of custody and guardianship of the minor child. See Mohini v. Virendra Kumar, A.I.R. 1975 S.C. 1359, C.S. Reddy v. (Smt.) Yamuna Reddy : A.I.R. 1975 Kar. 134 and A.V. Venkatakrishnaiah and another v. S.A. Sathya Kumar : A.I.R. 1978 Kar. 220.

(3.) I also do not find any merit in the argument that the present petition for Habeas Corpus is not maintainable as the applicant's mother has given alternative remedy of taking recourse to regular proceeding for the appointment of guardian of the minor child. If the mother has been deprived of custody of minor child illegally, she can move application of Habeas Corpus in spite of the fact that she has not resorted to the other remedy open to her to apply or appointment as a guardian of minor. It cannot be said as a broad proposition that because of the existence of remedy under the Guardian and Wards Act or the Hindu Minority and Guardianship Act the remedy under Article 226 of the Constitution is not available to secure custody of a minor child. See Vinayak Goyal v. Prem Prakash Goyal and others : 1981 A.L.J. 752 (D.B.); Dushyant Somal v. Shusmha : A.I.R. 1981 S.C. 1026. Thus, it is, fairly well settled that the writ of Habeas Corpus would be maintainable for the custody of a child despite the alternative remedy of filing an application under aforesaid enactments. I, therefore, do not find any merit in the said contention that this petition is not maintainable.