The best interest and welfare of the child is the primary consideration when making an interim order for custody. The custody of a child under the age of five should ordinarily be with the mother, unless special circumstances indicate otherwise.

S. Malimath, J.—This is an appeal by the wife of the respondent against the order passed by the Civil Judge, Civil Station, Bangalore, In M. C. No. 20 of 1970 directing the appellant to hand over the custody of the child Saraswathi to the respondent-husband.

2. The respondent filed the suit on 8th of April 1970 against the appellant for restitution of conjugal rights under the provisions of the Hindu Marriage Act, 1955. The respondent also filed an Interim Application No. 1 on the 8th of April 1970 under Section 26 of the Hindu Marriage Act, 1955 and prayed for the custody of his child Saraswathi, who is about 3 1/2 years old, pending disposal of the main case. That application was seriously contested by the appellant-wife. The learned Civil judge has allowed the respondent's application and made an order for restoration of the custody of the child Saraswathi in favour of the respondent-husband.

3. It is the correctness of the order passed by the learned Civil Judge that is challenged by the wife in this appeal.

4. The appellant and the respondent were married sometime in the year 1965. The child, in question, Kumari Saraswathi was born on 1-11-1966. Thereafter, another male child was born sometime in July, 1968. It is not disputed that from about the date of marriage till about July, 1968, the wife was residing with the husband. After the birth of the second child, the wife has been residing with her mother. It is not disputed that the second child was with the mother till it died sometime in April, 1969. The case of the appellant is that the first child Saraswathi was also residing with her and that on the pretext of taking the child for a day or two, the husband took away Saraswathi and did not send her back. The case of the respondent, however, is that after the birth of the second child, Saraswathi was staying with him. It is unnecessary to consider, at present, as to which of the two versions is true. It is clear from the case put forward by both the parties that the child Saraswathi was residing with the father for about 1 1/2 years prior to the filing of the suit for restitution of conjugal rights. The father had put Saraswathi in a Kindergarten School where she was studying. On the 2nd of April 1970, the appellant took her child Saraswathi directly from the school and retained custody of her child with her. Immediately thereafter, the husband filed the suit on the 8th of April, 1970 as well as an application for the custody of his daughter Saraswathi.

5. Section 26 of the Hindu Marriage Act empowers the Court to pass interim orders in regard to custody, maintenance and education of minor children in any proceedings initiated under the Act. Section 26 does not indicate the circumstances which the court has to take into consideration for the purpose of making an interim order in regard to custody of minor children. When dealing with an application under Section 26 of the Hindu Marriage Act, in so far as it relates to the custody of a minor child, the primary consideration of the court should be to determine, having regard to all the facts and circumstances of the case as to what is in the best interest of the minor child. The primary and paramount consideration, though not the sole consideration for the court, must be the welfare of the minor child. The court has to bear in mind that it is not so much the question of the rights of the husband or the wife in respect of the custody of the minor child, as it is the question relating to the welfare of the child. It is only from the point of view of the welfare of the child that the court has to examine the facts and circumstances of the case and pass an interim order in regard to the custody of the minor child.

6. Section 6 of the Hindu Minority and Guardianship Act, 1956, provides that the natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property, are, - in the case of a boy or an unmarried girl - the father, and