The phrase 'ordinarily' in Section 6 of the Hindu Minority and Guardianship Act, 1956 does not guarantee an indefeasible right to the mother for the custody of a minor boy under five years.

JUDGMENT

Sureshwar Thakur, J. - The petitioner, and, co-respondent No. 4, entered into a legal wedlock, and, from their legal wedlock, a child named, one Arjun, was born. Since some matrimonial strife has erupted inter se the above marital partners thereupon, the custody of above Arjun, who is now aged 4 years, has been assumed by co-respondent No. 4. Consequently, the present petitioner, who is the biological mother of one Arjun, has claimed custody over Arjun, and, has obviously asked for restoration to her, of the custody of minor Arjun, through a writ of habeas corpus, being made upon co-respondents No. 4 to 10, within whose household, the above minor boy is extantly residing, and, that it being also made upon co-respondents No. 1 to 3, for the latters ensuring the retrieval, to her, of the custody of minor boy Arjun.

2. The gravamen of the above claim becomes grooved in the factum of the petitioner departing from the matrimonial company of her husband, given the latter subjecting her to physical cruelty. It appears that the above purported meteings of physical cruelty to the petitioner, by her husband, who is arrayed as co-respondent No. 4, in the petition, has fostered an apprehension in the mind of the petitioner, that even her minor son, is unsafe within the household of co-respondents No. 4 to 10, and, for ensuring his safety, and, besides for ensuring that the optimum befitting care, and, nourishment becomes bestowed, upon one Arjun, rather the custody of the latter, be restored from the private respondents, to her.

3. Though, the statutory mandate, as carried in Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short 'Act'), provisions whereof stand hereinafter, carry a statutory contemplation, that in respect of the custody of a boy, who has not, at the relevant stage, yet completed the age of five years, 'shall ordinarily be with her/his mother.'

6. Natural guardians of a Hindu minor.-The natural guardian 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 case of an illegitimate boy or an illegitimate unmarried girl-the 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).'

4. However, the phrase 'ordinarily' as carried thereins, obviously does not bestow any indefeasible right in the biological mother of a minor boy aged upto five years, as is the age of one Arjun, to even without hers, prima facie establishing that the most befitting optimum care with respect to the upbringings, and, nourishment(s) of the boy, aged upto four years, rather can become meted to him by her, rather make any valid strivings before any Court of law, qua yet the custody of a boy aged upto five years, becoming restored to her. In other words, unless evidence surges-forth qua the care giving to a boy upto four years, by his father, is completely deficit on all facets, she cannot make any valid endeavour with respect to the contentious factum, being answered in her favour. Predominantly also the phrase 'ordinarily' existing in Section 6 of the Act, and, to which the afore interpretation, is meted, also does make the above thereto made interpretation, to completely fall in alignment, with the principle of 'parens patriae', rather enjoined to be adhered by the Courts of law, while acting as 'locus parentis', of the minor boy, aged about four years. Evidence qua compliances to the above solemn duty as cast u