IMPORTANT POINT
Section 6 of the Hindu Minority and Guardianship Act 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot superseed the paramount consideration as to what is conducive to the welfare of the minor.

JUDGMENT

Chandrachud, CJI.- The appellant, Surinder Kaur Sandhu, is the wife of respondent 1, H1rbax Singh Sandhu. Respondent 2 is the father of respondent 1. Appellant and respondent 1 were married in 1975 at Bodni Kalan, District Faridkot, Punjab, according to Sikh rites. Soon after the marriage they left for England, where a boy named Pritpal Singh was born to them on October 24, 1976.

2. Within a short period after the birth of the boy, the relationship between the spouses came under a strain resulting in a serious spisode. The husband was trapped by the Barkshire Police who got the scent that he was negotiating with a hit man to have the wife run over by a car. The husband was convicted and sentenced to a term of three years for that offence. Ironically, it was the wife who intervened and succeeded in obtaining a probation order for the man who had attempted to procure her murder. The husband was released on probation on February 4, 1982. The period of probation expired on December 24, 1982.

3. On January 31, 1983, while the wife was away at work, the husband removed the boy from England and brought him to India. On the same date, the wife obtained an order under section 41 of the Supreme Court Act, 1981 under which the boy became the Ward of the Court with effect from that date. That order was confirmed on July 22, 1983 by Mrs. Justice Booth of the High Court of Justice (Family Division). By the said order, the husband was directed to hand over the custody of the minor boy to the wife or her agent forthwith.

4. The wife came to India in April 1983. 1 May 5, 1983 she filed a petition under section 97 of the Code of Criminal Procedure in the Court of the learned Judicial Magistrate, First Class, Jagraon. She asked for the custody of her son, contending that he was in the illegal custody of the respondents. Section 97 authorises the Magistrate to direct a search to be made for persons wrongfully confined and, on their being found, to be produced in the Court in order to facilitate the passing of such order as, the circumstances of the case may require. The respondents relied upon section 6 of the Hindu Minority and Guardianship Act, 1956, and opposed the petition on the ground that Respondent was the natural guardian of the minor boy. Accepting that -contention, the learned Magistrate dismissed the petition, leaving the question of the custody of the child to he decided in an appropriate proceeding.

5. The wife then went back to England to resume her work and obtained the order dated July 21, 1983 to which we have already referred. She came back to India once again, this time armed with the aforesaid order of the English High Court. She then filed the present writ petition in the High Court of Punjab and Haryana, asking for the production and custody of her minor son.

6. The learned single Judge of the High Court who dealt with the petition made an excellent effort to bring about a rapprochement between the spouses but, he did not succeed. He questioned the boy more than once and he even persuaded the spouses to live together for a couple of days in the house of the Inspector General of Prisons, Haryana. The spouses reported back to him that they were unable to resolve- their differences.

7. The learned Judge dismissed the wifes petition on the grounds, inter alia, that her status in England is that of a foreigner, a factory worker and a wife living separately from the husband; that she had no relatives in England; and that, the child would have to live in lonely and dismal surroundings in England. On the other hand, according to the learned Judge, the father had gone through a traumatic experience of a conviction on a criminal charge; that he wag back home in an atmosphere which welcomed him; that his parents were in affluent circumstances; and that, the child would grow in an atmosphere of self confidence and self-respect if he was permitted to live with them.

8. Some of these circumstances mentioned by the learned Judge