Custody of Child--Child aged below 5 years--Mother working as a doctor--The same as such does not constitute an unsuitability unless it can be shown that the children would be neglected by the mother

B.S.WALIA, J.

1. Challenge is to order dated 05.12.2016 (Annexure P-4) passed by the learned District Judge, Family Court-I, Faridabad, dismissing the petitioner mother’s prayer for interim custody of minor child Rudransh during the pendency of application under Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as ‘the 1890 Act).

2. Brief facts of the case leading to the filing of the instant petition are that an application was moved by the petitioner before the learned District Judge, Family Court-I, Faridabad, with the averments that she was married to the respondent on 25.02.2012, that male twins, Ranvijay and Rudransh were born out of the wedlock on 27.12.2013, but that she and her son Ranvijay who was not keeping well were turned out from the matrimonial home by the respondent and his parents on 07.03.2015 though Rudransh was kept by the respondent and his parents, that she had got Ranvijay treated from Escorts Hospital as well as Sir Gangaram Hospital by spending a huge amount and during said period, neither the respondent nor his parents supported her or Ranvijay, emotionally or financially, that the respondent is not in a position to take care of minor Rudransh due to his tender age as also on account of his remaining outside home in connection with the running of Marriage Palace, that the welfare of a child of tender age required the child to be neither separated from the mother nor his sibling twin since the same would impact the child emotionally besides affect his development and growth. Prayer was for handing over the interim custody of Rudransh to the petitioner. It needs noticing here that the petitioner who is a B.D.S., was earlier working in the Sagar Dental Hospital, Ballabgarh but now she is working in a private clinic at Faridabad.

3. Stand on behalf of the respondent was that while doing internship in the B.D. S. the petitioner stayed in a hostel for one year and during said period she left Ranvijay with her parents and now, since she is working, it would not be possible for her to take care of both the children. Leaned counsel contended that ever since the petitioner had left the matrimonial home, Rudransh was living under the care and custody of the respondent father while studying in a reputed school at Faridabad, besides he was under the care and custody of his grandparents as and when the respondent had to go out in connection with work at the Marriage Palace being run by him. Learned counsel contended that in the circumstances, the order passed by the learned District Judge, Family Court-I, Faridabad, was valid and did not warrant any interference by this Court.

4. The learned District Judge, Family Court-I, Faridabad dismissed the application on the ground that minor child Rudransh was in the custody of the respondent since 07.03.2015 and there was nothing on the record to show that the respondent was not able to look after the minor child Rudransh, besides the petitioner had failed to convince the Court that the respondent was not taking proper care of minor child Rudransh.

5. Learned counsel for the petitioner contended that as per Section 6 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as ‘the 1956 Act) no doubt natural guardian of a minor child is the father, but in the case of minor who has not completed the age of five years, custody of the minor is ordinarily to be with the mother. Learned counsel further contends that the 1956 Act was in addition to the 1890 Act, besides Section 5 of the 1956 Act provided for overriding effect of the Act with regard to any other law in force in so far as it is inconsistent with any of the provisions contained in the 1956 Act, that, even if the application was filed under the 1890 Act, it was the provisions of Section 6 of the 1956 Act, which were relevant for determining as to which of the parents is entitled to the custody of a child below the age of five years. Relevant extract of Section 6 of the 19