The welfare of the child is the paramount consideration in determining the custody of a minor child.

1. This is a petition by mother for issuance of a writ of habeas corpus for the custody of her minor son Mandeep Gautam alias Michael aged about five years, who is for the time being in custody of respondents Nos.1 to 3.

2. The facts relevant as emerging from the pleadings of the parties may be taken note of :-

"the petitioner Mrs. Amita Gautam was married to Sandeep Gautam (respondent No.3) in India on 12th December, 1982. The child whose custody is sought, was born to the couple on 10th October, 1984, in Calgary, Alberta, Canada. It is alleged in the petition that in the month of March, 1985, the petitioner was duped by the husband Sandeep Gautam by telling her that his ailing mother wanted to see the petitioners son and then they both alongwith the child came to India and after about two months of miserable period of stay at the respondents house at Nawan Shehar, in/around May, 1985, she had to leave for Canada without her child and that her husband had played fraud on her as be failed to fulfil his undertaking given at the time when the child was retained by the grand-parents that the former would be brought to Canada alongwith the father. Unfortunate differences having arisen between the two spouses, the petitioner had filed an application for interim custody of the child and the same was granted to her by the Queens Bench of Alberta on 9th August, 1985. Thereafter, the husband moved a divorce petition against the petitioner in the Canadian Court in the year 1985 but later on he withdrew the same. The petitioner then moved an application for divorce in the Court of Queens Bench of Alberta and the same was decreed in her favour on 1-3-1989. It is alleged that on the advice given by the Solicitors in Canada that the remedy for the release of her son lay in Indian Courts, she tried to come to India but the disturbed conditions in Punjab hampered her efforts in this direction. The Indian Embassy in Canada was not inclined to give permits for entry into Punjab and that when the restrictions were relaxed, the petitioner alongwith her parents came to India. On 29th July, 1989, she alongwith the police approached the respondents to meet her minor son but she was treated roughly and she was also refused access to her minor son. The petitioner finding herself totally helpless to receive back the custody of her child, filed this writ petition seeking direction to the respondents to handover the custody of her minor son under the order of a competent foreign Court. "

3. On the other hand, the respondents have come out with the various allegations in their returns -against the petitioner which I need not repeat here being irrelevant to the issues involved. According to the husband, the child is being well looked after by his mother (respondent No.2 ). The husband has further pleaded that the handing over of the child to the petitioner would not be in the interest of the child. He has, therefore, pleaded for the rejection of the petition.

4. Having heard learned counsel for the parties, I am of the opinion that this petition must be allowed. At the outset, I would like to mention that in the nature of the present case, it is not at all necessary for me to go into the details of the allegations and counter allegations of the parties. I am required to decide this petition on the sole consideration in whose custody the welfare of the minor lies. Under Sec.6 (a) of the Hindu Minority and Guardianship Act, 1956, it is provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. The clause gives legislative sanction to the principle which is now well established that although the father is the natural guardian of the minor child and entitled as such to his custody, the prime and paramount consideration is the welfare of the minor and the custody of a child of tender years should, therefore, remain with the mother unless there are grave and weighty considerations which require t