P.D. DESAI, C.J.

(1.) Yesterday we passed an order allowing the petition but the judgement could not be delivered for want of time. We proceed to do so now. The factual matrix :

(2.) The petitioner is the wife of the second respondent (hereinafter referred to as "the respondent"). The parties were married in the month of February, 1980. After the marriage, the respondent has been living with the petitioner in a house constructed by her parents. Two sons (twins) were born out a the wedlock in the month of May, 1981. The petitioner alleges that the respondent, who is a habitual drunkard, has been maltreating her since 1982. Frequent quarrels and cruel beatings have almost become a daily routine.

(3.) According to the petitioner, the respondent returned home at about 9 a.m. on July 12, 1986. He was under the influence of liquor. He asked far the custody of the children since he wanted to go away with them. When the petitioner refused to oblige, he tried to forcibly snatch away the children. The petitioner thereupon raised an alarm and the respondent went away. On July 13, 1986 at about 9.30 a.m. the respondent once again tried to take away the children along with the belongings. The petitioner alleges that she thereupon locked the house. The respondent reported the matter to the Police who directed her to unlock the premises. The Petitioner was also summoned to the Police Chowki the next day, that is, on July 14, 1986. According to the petitioner, on July 15, 1986, the children were ultimately taken away by the respondent.

(4.) The petitioner states that both the children are of tender age (5 years) and that it is in their interest and in their welfare that they continue to remain in her custody. especially because the respondent is a habitual drunkard and a highly irresponsible person.

(5.) The respondent has filed a return refuting the allegations made against him and resisting the petition. It is not disputed that since after the marriage he is residing with the petitioner in the house of her parents. His version is that he was humiliated by the parents of the petitioner on a number of occasions. On July, 12, 1986, he was asked to leave the house. He therefore, decided to leave the house with his wife and children. The petitioner, however, refused to go with him and he was not even allowed to go into the house to collect his belongings. He there upon went to the Police Chowki and reported the matter to the Police. On July 14, 1986, he took the children along with him to the house of one of his colleagues who resides in the BBMB quarters. According to the respondent, he has applied for the allotment of Government accommodation which was expected to be allotted very soon. Besides, he had also started constructing a house on the land belonging to the parents of the petitioner which he intends to occupy no sooner it is completed. The allegations that he is a drunkard and that he is unable to take care of the children have been stoutly denied.

(6.) The undisputed facts which emerge on an analysis of the rival cases are as follows : The relations between the parties have been strained since 1982. The two minor children (twins) are both just 5 years old. They were taken away by the respondent in the middle of this month (July 14 or 15, 1986) from the house of the parents of the petitioner where both of them used to reside since after their marriage. The respondent and the children are now living in the house of a friend since he does not have any independent accommodation of his own and they may have to continue to stay there till he procures suitable accommodation. The learned counsel for the respondent has stated that he is employed as a Laboratory attendant and that he is required to attend duty from 9 a.m. to 5 p.m. The question for decision :

(7.) The question which arises against the aforesaid background is whether, in the exercise of its writ jurisdiction, the Court should order that the custody of the minor children be restored to the petitioner. Whether the Writ of Habeas Corpus can Issue

(8.) It is well established that the writ of Habeas Corpus can be pressed into service for granting the custody of a child to the deserving spouse. The following observations in para 13 of the decision in Gohar Begum v. Suggi alias Nazma Begum, AIR 1960 SC 93 : (1960 Cri LJ 164) clinch the issue :

"It is further well established in England that in issuing a writ of habeas corpus a court has power in the case of infants to direct its custody to be placed with a certain person. In R.v. Greenhill, (1836) 4 Ad. and El. 624 at P. 640 : 111 ER 922 at p. 927 Lord Denman C. J. said : When an infant is brought before the Court by habeas corpus, if he be of an age to exercise a choice, the Court leaves him to elect where he will go. If he be not of that age, and a want of direction would only expose him to dangers or seductions, the Court must make an order for his being placed in the proper custody. See also (1857) 7 El Bl 186 : 119 ER 1217. In Halsburys Laws of England, Vol.IX, Art.1201 at page 702 it is said : Where, as frequently occurs in the case of infants, conflicting claims for the custody of the same individual are raised, such claims may be enquired into on the return to a writ of habeas corpus, and the custody awarded to the proper persons. S.491 is expressly concerned with directions of the nature of a habeas corpus. The English principles applicable to the issue of a writ of habeas corpus, therefore, apply here. In fact the courts in our country have always exercised the power to direct under S.491 in a fit case that the custody of an infant be delivered to the applicant : see Rama Iyer v. Nataraja Iyer, AIR 1948 Mad 294 : (48 Cri LJ 369), Zara Bibi v. Abdul Razza, (1910) 12 Bom LR 891 and Subbaswami Goundan v. Kamakshi Ammal, ILR 53 Mad 72 . If the courts did not have this power, the remedy under S.491 would in the case of infants often become infructuous."

These observations made in the context of S.491 of the Criminal P.C. 1898, apply with equal force in the exercise of the constitutional jurisdiction conferred upon this Court by Art.226 of the Constitution.

(9.) In the United States of America also it is recognised that Habeas Corpus is a proper legal remedy to obtain the discharge of an infant from a detention that is illegal, and to determine controversies concerning the right to custody of the infant. 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 are legally separated or divorced. In a proper case the writ may be sued out by a tutor or guardian deprived of the custody of his ward, or by corporations and societies that have, in a legal manner, acquired the right to the custody of children. But one who is not related to the child cannot bring a Habeas Corpus proceeding without averring at least a prima facie legal right to custody. (See : Paras 99 and 118 at pages 249 and 264 of Vol. 39 of the American Jurisprudence, Second Edition).

(10.) The observations of the Supreme Court in Gohar Begums case (AIR 1960 SC 93 ) with regard to the issue of the writ of Habeas Corpus in child custody cases finds support also from the following statement of law occurring in Vol. 11, Article 1469 at page 779 of Halsburys laws of England, Fourth (latest) Edition :

"A parent, guardian, or other person who is legally entitled to the custody of a minor can regain that custody when wrongfully deprived of it by means of the writ of habeas corpus."

The Nature and Purpose of the Jurisdiction :

(11.) It is well established that in issuing the writ of Habeas Corpus in the case of infants, the jurisdiction which the Court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statute. In other words, the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of, statute. The jurisdiction exercised by the Court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its infant ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity. The primary object of a habeas corpus petition, as applied to infants, is to determine in whose custody the best interests of the child will probably be advanced. In a Habeas Corpus proceeding brought by one parent against the other for the custody of their child, the Court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the State, as Parens Patriae, has in promoting the best interests of the child. The following passages at Pages 249, 280 and 281 (Paras 99, 148 and 149) extracted from and the cases cited in footnotes 10, 14 and 19 at pages 280 and 281 of the American Jurisprudence, Vol. 39, Second Edition, make this position clear : "Where the writ is availed of for the latter purpose (to determine controversies concerning the right to custody of the infant), 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 Court, in passing on the writ in a child custody case, deals with a matter of an equitable nature, it is not bound by any mere 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. ......... In short, the childs 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 consideration. An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. ....... Habeas corpus is a summary proceeding, and, as applied to infants, its primary object is to determine in whose custody the best interests of the child will probably be advanced. The Considerations Which Must Weigh With the Court in Awarding Actual Custody :

(12.) The law is well settled that the natural duty of a parent to protect an infant child rests with the parent having actual custody of the child. A person has actual custody of a child if he or she has actual possession of the childs person, whether or not that possession is shared with one or more other persons (See : Halsburys Laws of England, Fourth Edition, Vol. 24, Articles 504 and 510 at pages 214-217). These factors have relevance in determining the dispute relating to the actual custody of a minor child.

(13.) As observed earlier, the Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a childs ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Courts view of the best interests of the child whose welfare requires that he be in custody of one parent or the other.

(14.) The general principle governing the award of custody of a minor is succinctly stated in the following words in Halsburys Laws of England, Fourth Edition, Vol. 24, Article 511 at page 217 :

"Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minors welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the fathers claim in respect of that custody or upbringing is superior to that of the mother, or the mothers claim is superior to that of the father."

In the American Jurisprudence, Vol. 39, Second Edition, Para 148 at pages 280-281, the same principle is enunciated in the following words :

"..... a court is not 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 careful consideration of the facts, leave it in such custody as its welfare at the time appears to require."

In Foot Note 14 at page 281, the following extracts from two American cases are set-out which also emphasise this point :

"The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statute, but the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate. Howarth v. Northcott, 152 Conn 460, 208 A 2d and 540, 17 ALR3d 758."

The primary object of habeas corpus, as applied to infants, is to determine in whose custody the best interests of the infant will probably be advanced. Buchanan v. Buchanan, 170 Va 458, 197 SE 426, 116 ALR 688

(15.) The Courts in India have also been guided by these considerations in deciding. child custody cases. In Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090 , which was a case arising under S.25 of the Guardians and Wards Act, 1890, the pertinent observations made in this context being relevant are extracted hereinbelow :

"The Courts power ........... is also, in our opinion, to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions, to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom if ever-identical. The contention that if the husband is not unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly and may at times be somewhat misleading....... In our opinion, the dominant consideration in making orders under S.25 is the welfare of the minor children and in considering this question due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minors welfare. ............. There is no dichotomy between the fitness of, the father to be entrusted with the custody of his minor children and considerations of their welfare. The fathers fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote there welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under S.25 merely because there is no defect in his personal character and he has attachment for his children - which every normal parent has. ...... The fathers fitness from the point of view just mentioned cannot override considerations of the welfare of the minor children. No doubt, the father has been presumed by the statute generally to be better fitted to look after the children being normally the earning member and head of the family - but the court has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education. ....... Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources. may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels : nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them."

(16.) In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, AIR 1982 SC 1276 , the Supreme Court reiterated this view in the following words :

"The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minors interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor."

(17.) It is, thus, clear that as between the competing claims of two parents in receipt of the custody of a minor child, the mere fact that the father is not unfit to be the custodian, is not determinative of the issue of its welfare. If the custody of the father cannot promote the welfare equally or better than the custody of the mother, then he cannot claim indefeasible right to the childs custody. Indeed, the "tender years rule" requires that the custody of the children of tender age must be left with the mother. The mothers protection for such children is indispensable, We cannot think of any other protection which will be equal in measure and substance to that of the mother in such circumstances.

(18.) The following passage occurring in Bailey on Habeas Corpus, Vol. I, page 581, is very much opposite in this context :

"The reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separated from him without the shadow of a pretence of justification; and yet the interests of the child may imperatively demand the denial of the fathers right and its continuance with the mother. The tender age and precarious state of its health make the vigilance of the mother indispensable to its proper care; for, not doubting that paternal anxiety would seek for and obtain the best substitute which could be procured yet every instinct of humanity unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her offspring, is prompted by deeper and holier feeling than the most liberal allowance of nurses wages would possibly stimulate."

(19.) An incidental aspect, which is to be borne in mind, may be adverted to In determining whether it will be for the best interest of a child to award its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgement, (See : Para 148 at page 281 of Vol. 39 of the American Jurisprudence, Second Edition). The writ may, however, issue not only without the privity of the child, but even against his express wishes (See : Para 99 at page 250 of Vol. 39 of the American Jurisprudence, Second Edition). THE NATURE OF ILLEGALITY OF RESTRAINT PROVABLE IN CHILD CUSTODY CASES :

(20.) In Gohar Begums case (AIR 1960 SC 93 ) (supra), it was observed in para 7 that when the respondent had no legal right whatsoever to the custody of the child, the refusal to make over the child to the custody of the person entitled thereto in accordance with law results in an illegal detention of the child within the meaning of S.491 of the Criminal P.C., 1898 and that, therefore, the writ of Habeas Corpus can legitimately issue. The following observations of Lord Campbell, C.J. in R.v. Clarke, (1857) 7 El. and Bl. 186 : 119 ER 1217, were quoted with approval :

"But with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian; and when delivered to him, the child is supposed to be set at liberty."

(21.) In Halsuburys Laws of England Vol. 11, Fourth Edition, Article 1469, page 779, the following pertinent observations clearly bring out the aforesaid position :

"......For the purpose of the issue of the writ, the unlawful detention of a minor from the person who is legally entitled to his custody is regarded as equivalent to an unlawful imprisonment of the minor. In applying for the writ it is, therefore, unnecessary to allege that any restraint or force is being used towards the minor by the person in whose custody and control he is for the time being."

(22.) The following observations in the American Jurisprudence, Vol. 39, Second Edition, at pages 250 and 280 (Paras 99 and 148), highlight the same point and throw light on the nature of inquiry which the court is required to make when moved for a writ of Habeas Corpus in the case of an infant :

"Ordinarily, the basis for issuance of a writ of habeas corpus is an illegal detention; but in the case of such a writ sued out for the detention of a child, the law is concerned not so much with the illegality of the detention as with the welfare of the child. Unlike other cases in which the remedy is available, the writ lies where its subject is a child, notwithstanding that the child is not held in actual physical restraint but remains with the respondent through natural inclination. In the case of infants, an unauthorised absence from legal custody has been treated, at least for the purpose of allowing the writ to issue, as equivalent to imprisonment, and the right to have a child returned to legal custody has been treated as equivalent to a wish to be free; and proceedings in habeas corpus have so frequently been resorted to in order to determine the right to possession of a minor that the question of physical restraint need be given little if any consideration where a lawful right is asserted to retain possession. ... and it may issue though the person in whose custody the child is denies that he is restraining or preventing the child from returning to his parents, if it appears that he harbours the child and refuses to permit the parents to exercise parental authority to enforce a return. Generally, where the writ of habeas corpus is prosecuted for the purpose of determining the right to custody of a child, the controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until it attains its majority. ........ Therefore, these cases are decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but on the Courts view of the best interests of those whose welfare requires that they be in custody of one person or another."

(23.) It is, thus, clear that these cases are decided not on the legal right of the child to be relieved from the unlawful imprisonment or detention but on the Courts view of its best interests and welfare. The unlawful detention would be presumed in such cases when the person legally entitled to the custody of the infant is denied the same. It is not required also to allege and prove that any restraint or force is used against the infant. Whether An Alternative Remedy Is A Bar

(24.) In Gohar Begums case (AIR 1960 SC 93 ) (supra), the Supreme Court has ruled in no uncertain terms that a remedy under any special statute is distinct from the writ of Habeas Corpus. The following pertinent observations in part 10 of the judgement highlight this point :

"We further see no reason why the appellant should have been asked to proceed under the Guardians and Wards Act for recovering the custody of the child. She had of course the right to do so. But she had also a clear right to an order for the custody of the child under S.491 of the Code. The fact that she had a right under the Guardians and Wards Act is no justification for denying her the right under S.491. That is well established as will appear from the cases hereinafter cited."

The cases referred to were both Indian and English cases. The Legislative Policy Regarding The Custody Of A Child Of Tender Years :

(25.) The law, which generally lags behind social advances, has haltingly stepped in by enacting S.6 of the Hindu Minority and Guardianship Act, 1956 and taken a small step in the direction of treating the mother as better suited for custody till the minor attains the age of 5. The relevant portion of S.6 of the said Act reads as follows : "The natural guardians of a Hindu minor in respect of the minors person as well as in respect of the minors 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 shallordinarilybe with the mother." (Emphasis supplied) The "tender years rule" has thus found statutory recognition and the legislative policy underlying thereto is based not only on the social philosophy but also in realities and points in the direction that the custody of minor children who have not completed the age of 5 years should ordinarily be with the mother irrespective of the fact that the father is the natural guardian of such minors. When moved for a writ of Habeas Corpus and in exercising the general and inherent jurisdiction in a child custody case, the Court is required to bear this legislative prescription in mind while judging the issue as to the welfare of the child. Findings Against The Factual Backdrop :

(26.) In the present case, both the children have just attained the age of 5. The parties are Hindus and the "tender years rule", as statutorily recognised, is immediately attracted in their case and it cannot be ignored in judging their welfare. The respondent has no house of his own and stays with the children in the house of a friend. The minor children are thus deprived of the congenial and familiar surroundings of their own home and family. The respondent is employed and his hours of duty from 9 a.m. to 5 p.m. will keep him away from the minor children for the most part of the day for five days in a weak. There is nothing in the return to show as to in whose custody he leaves the minor children when he goes to work and what arrangement he has made or proposes to make in that regard. Assuming that such arrangement is or will be made, it would be an apologetic substitute for the mothers watchfulness and vigilance over the up-bringing and comfort of the minor offsprings. On the other hand, the petitioner is living with her parents in the house owned by them. She is in a position to devote her full time, care and attention to the minor children. Human nature as it is, her parents are also bound to assist her in looking after them with the affection naturally and normally shown to the grand children by the grand parents. There is not the slightest allegation as to the mental, moral or physical disqualification, if any, of the petitioner to superintend the general welfare of the children. There is also no allegation that she would be unable to support them, but even if there were any, we would not have hesitated to require the respondent to provide the financial support by making an order to that effect in the course of the present proceedings. Even ignoring the allegations made against the respondent and assuming that he is otherwise fit to be entrusted with the custody of the minor children the question of custody has still to be resolved in the context of all the relevant circumstances having a bearing on the minors welfare including their ordinary comfort, contentment, health and upbringing. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he has no indefeasible right to the childrens custody. The mothers protection for the two minor children is, in our opinion, indispensable. We cannot think of any other protection which will be equal in measure and substance to that of the mother. Relief :

(27.) Having given our anxious consideration to all the material circumstances of the case and having unhesitatingly reached the conclusion that the best interests of the minors requires that their custody be given to the petitioner, we have passed the order allowing the petition. We would like to make it clear, however, that the order is of a temporary nature and that it is open to review according to the circumstances that may arise in future and that under such circumstances, that parties will be at liberty to apply to the court of competent jurisdiction for an appropriate relief. We have been informed by the learned counsel for the petitioner that both the children are being sent to a nursery school. The petitioner will ensure that they continue to attend the nursery school till they attain the age when they can be admitted to a regular school and that as and when they attain such age, they will be admitted to the regular school. We are also of the view that the best interests of the minor children require that they should not be altogether deprived of the paternal affection and company and, therefore, direct that the respondent will be provided access to the minor children by the petitioner at her parents house between 4 p.m. to 6 p.m. on every Saturday. The respondent will not, however, take the children out and will not by an act or omission on his part create any situation which has the direct or indirect effect of disturbing the sense of security and emotional balance of the children and the domestic harmony. These directions and observations are to be read as forming part of the order passed yesterday. Petition allowed.