The welfare of the minor is the paramount consideration in determining the custody of a minor child, and the court must consider all relevant factors, including the natural affection and care of the mother, in making its decision.

( 1 ) INDER Dev Dua C. J.-The appellant in this appeal assails the order dated 7-9-1968 made by a learned Subordinate Judge 1st Class, Delhi, dismissing her application under section 26 of the Hindu Marriage Act for the custody of her minor male child below five years of age, the application having been made in the course of the proceedings for judicial separation initiated by her under section 10 of the said Act.

( 2 ) THE Court below has observed in the impugned order that there is nothing on the record to show that the father has not been properly maintaining and keeping the child and that the bare affidavit filed by the wife is insufficient to establish the contrary. The Court emphasised the fact that when the child was brought to the Court and was questioned as to whether he was happy with his father, he replied in the affirmative, and from the face of the child, the Court got the impression that he was quite happy with his father. The Court also asked the wife to go back to her husband at least for the sake of her child and after giving a trial, if she still felt that it was not safe for her to live with her husband. she could come away from her husband s house and continue the present proceedings. The wife apparently did not agree to this suggestion which also seems to an extent to have induced the Court to give the decision against her. Finally, the Court has observed that the husband is living with his mother who can very well look after the minor child. The argument based on the age of the minor was disposed of by the Court below with the observations :-

"the mere fact that the child is only about 3 years old does not mean the father cannot keep him in his custody. He is not a suckling child. "

( 3 ) THE approach of the learned Subordinate Judge is obviously wrong, being opposed to the settled legal position and he seems to have missed the real point which demands consideration in such cases. The Hindu Minority and Guardianship Act No. 32 of 1956, designed to amend and codify certain parts of the law relating to minority and guardianship among Hindus, which, in case of inconsistency, overides all other laws, is otherwise supplemental to the Guardians and Wards Act No. 8 of 1890 and its provisions must prima fade govern the present case. Section 6 of this Act, which reads as under-

"natural guardians of a Hindu minor. The natural guardians 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 the case of an illegitimate boy or an illegitimate unmarried girl-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 expressions father and mother do not include a step-father and a step-mother"

CLEARLY provides that the custody of a minor, who has not completed the age of five years, shall ordinarily be with the mother.

( 4 ) THE proviso to clause (a) takes the custody of a minor below the age of five years out of the otherwise normal rule of the father being the natural guardian of a boy and an unmarried girl in preference to the mother and is apparently inspired by the proverbial universally accepted superiority of the natural mother s instinctive selfless love and affection for her children, particularly infants. The maternal care and affection, it is unnecessary to emphasise, is generally considered to be indispensable for the healthy growth of