J.J. Munir, J. - This petition for a writ of habeas corpus has been effectively instituted by Smt. Shalini Singh, wife of Mukesh Kumar Singh asking that her minor son Master Atharva, petitioner no. 1 be ordered to be produced before the Court by Mukesh Kumar singh, Brijesh Kumar Singh and Smt. Madhuri Singh, respondent nos. 6,7 and 8 and ordered to be liberated from the said respondents' custody by ordering the minor to be given into the custody of his mother, the second petitioner.

2. Smt. Shalini Singh, the second petitioner and Mukesh Kumar Singh, the 6th respondent were married according to Hindu rites on 03.12.2017. The wife says that there was an early onset of matrimonial cruelty in her life, with her husband and in-laws being the ones to blame. She says that there was demand of additional dowry and assault by the husband on a number of occasions. It appears that the marriage rode a bumpy course. A child, Master Atharv was born of the wedlock of parties on 05.11.2018. If the wife were to be believed the newborn did not do much to cement the cracks that were widening in the parties' marriage. The wife claims that postpartum, the husband, Mukesh turned more abusive and on occasion even attempted to assault the infant.

3. This Court does not intend to form opinions about this description of the parties' relationship by the wife but to shorten an account of malady, it must be said that on 11.08.2020, the husband and wife parted ways. The wife says, if her version again is to be believed in, that she was thrown out of the matrimonial home along with her infant on 11.08.2020. She then proceeded to her parents' place at Varanasi. Whichever way the couple fell apart, it is safe to infer that the second petitioner and her husband, the 6th respondent became an estranged couple on and after 11.08.2020. It is claimed by the wife that the 6th respondent came over to her parents' place in the evening hours of 11.08.2020 expressing his repentance and remorse, but she is quick to add that it was neither repentance or remorse; it was a decoy. The wife and her parents were taken in by the ruse and she agreed to go along with the 6th respondent back to her matrimonial home. By that time, it was very late in the evening hours. Therefore, the couple decided to spend the night at the wife's parents' place. The next day that is on 12.08.2020, when the wife's father and brother were away to run some errands, the husband and the second petitioner's in-laws, who were also staying back at the wife's parents' place, forcibly took away the minor, Master Atharv. It is claimed that in the scuffle, Smt. Shalini Singh and her minor son Master Atharv got severely injured. In spite of the injuries sustained by the child, the husband and other members of his family, who were involved in the mischief along with him, whisked away the child. The second petitioner, on her father and brother's return home, narrated the incident. Her father and brother immediately did their best to contact Mukesh Kumar Singh. Initially, Mukesh Kumar Singh did not receive the call, but lateron turned off his phone. The wife appears to have reported the matter through a written complaint addressed to the Station House Officer on 13.08.2020 as well as to the S.S.P., Varanasi and the Chairman Women's Commission, U.P., Lucknow on 17.08.2020 and 18.08.2020, respectively. None of these complaints were of any avail. The wife's father and brother proceeded to her matrimonial home but found the same locked with no one present. None of the second petitioner's in-laws or her husband would answer their phone calls.

4. It is pleaded in the writ petition that the wife did not know about the whereabouts of her minor son, the first petitioner, Master Atharv. The minor needs her badly as he is aged about one and a half years. The parameters of welfare determined in such matters place the minor's mother, that is to say, Smt. Shalini Singh, way above the minor's father and Shalini Singh's husband, Mukesh Kumar Singh.

5. The minor, who is an infant, needs his mother most and it is with her that the minor's welfare will be best secured. The complete deprivation of the mother of contact with her minor son, Master Atharv has been assailed as an unlawful custody by his father Mukesh Kumar Singh, the father's brother Brijesh Kumar Singh and Smt. Madhuri Singh, Shalini Singh's mother-in-law and Mukesh Kumar Singh's mother.

6. It was in the background of the above facts that this writ petition asking for a writ order or direction in the nature of habeas corpus was instituted on 31.08.2020. This court issued a rule nisi on 31.08.2020 ordering the minor to be produced on 17.09.2020. On 17.09.2020 service of the rule was awaited and the matter was ordered to be put up on 18.09.2020. On 18.09.2020, the S.P. Bhadohi was ordered to cause the detenue, Master Atharva to be produced before this Court on 22.09.2020 at 2:00 p.m. It was a bit surprising that the police were unable to trace the minor and they prayed two weeks time to comply with the rule nisi. Time was granted on 22.09.2020, until 06.10.2020. It was on 06.10.2020 that the minor along with his father was produced by the police before the Court. The Court felt that the second petitioner and the 6th respondent, who are an estranged couple and still young, ought to be given an opportunity to reconcile their differences amicably. A mediated settlement of the dispute was thought fit by the Court, in the circumstances. Accordingly, parties were referred to the Allahabad High Court Mediation and Conciliation Centre vide order dated 06.10.2020, asking the Centre to report back on the following day. The report of the Mediation Centre dated 07.10.2020 shows that the Center adjourned the mediation to 17.10.2020. The report of the Centre dated 17.10.2020, shows that in terms of the interim settlement agreement of that date, the parties agreed to stay together in a tenanted premises at Bhadohi and endeavour to work out their relationship. The next date fixed before the Centre was 09.11.2020. However, this Court vide order dated 07.10.2020, while asking the parties to appear before the Mediation Centre on 17.10.2020, as desired by the Centre, asked the parties to appear before the Court on 19.10.2020. In the meanwhile, while the parties entered into an interim settlement before the Mediation Centre, on 19.10.2020 before the Court, they did a volte-face and refused to act on the interim settlement. Thus, this Court had to discontinue the process of mediation and proceed with the hearing.

7. Respondent nos. 6,7 and 8 who are represented before this Court by Mr. Sanjay Vikram Singh, Advocate, have chosen not to file a counter affidavit and have addressed the Court on merits.

8. The facts for the purpose of this matter are not in much dispute. This Court does not intend to venture into determining allegation traded between parties about matrimonial cruelty which the wife sets up or whatever the husband says in rebuttal. The substance of the matter is that the first petitioner Master Atharva is a very young child, an infant aged about two years. He has hardly any say in the matter about his choice for a custody. The child being so young, it brooks little doubt that, being so young, his needs and welfare would be best secured in the mother's hand. An infant or a young child has a very special relationship with his mother, which no one else can substitute. So long as the mother is around, it is incomprehensible to deprive a young child or an infant, two years old, of his mother's care and love. The assumption that a young child's welfare is best secured in the mother's hand is no construction of the law. It is a conclusion dictated by human nature and the experience of mankind. It finds statutory embodiment in the provisions of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, where the proviso appended to Section 6(a) is of particular relevance. Section 6 of the Act, last mentioned, is extracted below:

"6. Natural guardians of a Hindu minor.--The natural guardian 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;

(b) in case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father;

(c) in the case of a married girl--the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.--In this section, the expression "father" and "mother" do not include a step-father and a step-mother."

9. A reading of the terms of the proviso to Section 6 shows that quite apart from the question of natural guardianship, the custody of a minor, who has not completed the age of five years, is to be ordinarily with the mother. The only niche, therefore, so far as the statue goes, is the word "ordinary". The word "ordinary" signifies that as a matter of rule, children up to the age of five years are to be left with their mothers, but there could be exceptions as well. Those exceptions could be where the mother is demonstrably leading an immoral life or may have remarried, where in her new home, the child from her earlier alliance has no place, or where the mother is convicted of a heinous offence etc. In the present case, no such circumstance has been indicated, much less pleaded and proved so as to place the mother in that exceptional category where she may be deprived of the custody of her young child, who is still well below the age of five years.

10. It must also be remarked that even after the child turns five, it is not that the mother becomes disentitled. She still would be the best person to tender a child and groom him into an adult. In this connection, reference may be made to the decision of the Supreme Court in Roxann Sharma vs. Arun Sharma, (2015) 8 SCC 318 [LQ/SC/2015/234] , where it has been held:

"13. The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the likelihood of the welfare and interest of the child being undermined or jeopardised if the custody is retained by the mother. Section 6(a) of the HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this section or for that matter any other provision including those contained in the G and W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years."

11. It is now almost a truism in the law that in the matter of appointment or a declaration of a guardian or grant of custody of a minor, the right of the person seeking custody is not important. It is the welfare of the minor that is of paramount importance. That principle is engrafted in Section 13 of the Hindu Minority and Guardianship Act and is the golden thread that runs across various statutes and transcends jurisdictions, when it comes to the question of a decision about guardianship or custody. The principles embodied in the Guardian and Wards Act, 1890 are no different. There are some very illuminating remarks made with reference to equally momentous authority by Rajul Bhargava, J. in Habeas Corpus Writ Petition No. 3921 of 2018, Aharya Baranwal and 3 others vs. State of U.P. and 2 others, that emphasize the principle of welfare as the paramount consideration and also the mother's special place in securing that welfare to a young child. These remarks come from His Lordship in the course of dealing with an objection about the maintainability of a habeas corpus petition to decide a custody dispute about a minor. In Aharya Baranwal (supra) while dealing with the objections as to maintainability, it has been held:

"21. Sometimes, a writ of habeas corpus is sought for custody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ-Court is 'welfare of the child'.

22. In Habeas Corpus, Vol. I, page 581, Bailey states;

"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 father's 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 could possibly stimulate."

23. It is further observed that an incidental aspect, which has a bearing on the question, may also be adverted to. In determining whether it will be for the best interests of a child to grant its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment.

24. In Mc Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, Lindley, L.J. observed;

The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word 'welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the tie of affection be disregarded. (emphasis supplied) American Law

25. Law in the United States is also not different. In American Jurisprudence, Second Edition, Vol. 39; para 31; page 34, it is stated;

"As a rule, in the selection of a guardian of a minor, the best interest of the child is the paramount consideration, to which even the rights of parents must sometimes yield". (emphasis supplied) In para 148; pp.280-81; it is stated;

"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. 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. 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 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 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 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 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. 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 judgment". (emphasis supplied)

26. In Howarth v. Northcott, 152 Conn 460 : 208 A 2nd 540 : 17 ALR 3rd 758; it was stated;

"In habeas corpus proceedings to determine child custody, 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". It was further observed;

"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".

(emphasis supplied)

27. It was also indicated that 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...."

(emphasis supplied)"

12. It has been particularly pointed out here that the father cannot take care of the child as he is employed as an Assistant Teacher and has to stay away from home almost all day. As already remarked, a child who is two years old, inevitably needs his mother more than he does his father. It is well known that financial capacity is not the sole index by which the suitability of a guardian for the minor's custody is to be judged. It is to be judged on far more sensitive parameters. For once, if it be found that the father is financially better of, that is not a factor that would work against the mother. This is so because the father still would have the responsibility to provide for the minor. If he fails to do so, the law would take care of it. The father's financial strength is available to the minor whether he stays with the father or the father and the mother living together or the mother, where the two live apart and estranged. In the considered opinion of this Court, therefore, the welfare of the minor would be best secured in the hands of his mother, the second petitioner, Smt. Shalini Singh.

13. In the result, the rule nisi is made absolute. The minor, Atharva is ordered to be handed over to the mother, Smt. Shalini Singh forthwith in Court. The writ petition is allowed.

14. It is further ordered that the father, respondent no. 6, Mukesh shall have visitation rights whereunder he shall be entitled to visit his minor son Master Atharva at Smt. Shalini Singh's abode twice a week on the Tuesdays and Saturdays, between 5:00 p.m. to 7:00 p.m. In case of any obstruction with his visitation rights, the S.H.O. P.S. Lalpur Pandepur, Varanasi shall lend necessary assistance to Mukesh Kumar Singh.

15. Let this order be communicated to the S.H.O., P.S., Lalpur, Pandeypur through the S.S.P., Varanasi by the Joint Registrar (compliance).