JUDGMENT :

1. Counter affidavit and Vakalatnama filed by Shri Sanjay Singh, learned counsel for respondent Nos. 4 to 7 is taken on record.

2. Learned counsel for the petitioner, Shri Sharad Chand Rai, learned counsel for private respondent Shri Sanjay Singh and learned A.G.A. for the State are present.

3. The corpus Vaishnavi and Ram Soni are produced before the Court by S.I. Mridul Mayank Pandey, P.S.- Kotwali Nagar, District Sultanpur and respondent No. 4 Shri Rakesh Soni. The statements of corpus Vaishanavi and Ram Soni has been recorded before the Court. Corpus Vaishnavi stated that she is aged around 13 years and her date of birth is 16.01.2010, she stated that she is receiving education in supervision of her father at Stella Maris Convent School, Sultanpur, her younger brother Ram Soni is also receiving education in same school. She stated that she is happily residing with her father and she is not willing to go with her mother, in fact, her mother never came to her parental home to meet her. She expressed her disinclination to go and live with her mother. Similarly, child Ram Soni stated her age around 10 years and there is no dispute regarding his age. He further submitted that he is studying in Class III in same school, where his sister is studying. He also stated that he is happily residing with his father and is not willing to go and live with his mother.

4. Heard submissions of learned counsel for the parties as well as learned A.G.A. for the State.

5. Learned counsel for the petitioner placed reliance on observations of this court in Habeas Corpus petition No. 165 of 2022 Km. Sanaya Sharma (Minor) and Another Vs. State of U.P. and 4 others, decided on 07.04.2022 wherein claim for custody was made by mother of the children Km. Sanaya Sharma aged 5 years and Master Tanisk Sharma aged around 2 and a half year, who were residing with their grand-mother due to death of their father, who committed suicide on 16.11.2020. On account of suicidal death of father of the children an F.I.R. was lodged by one Akash Sharma against their mother Seema Sharma, the petitioner and 5 others, in which investigation was under way. After sad and unfortunate demise of Akash Sharma, his wife Seema Sharma, the petitioner, started living with her sister at Moradabad, independently, whereas, her small kids, namely, Sanaya and Tanishk remained in the company of their grand-mother. This Court considered the provisions of Section 6 of Hindu Minority and Guardianship Act, 1956, wherein it is provided that in 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;

6. According to this Court, Section 6A of the said Act preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person, whilst the child is less than five years old. It carves out the exception of interim custody, in distinction of guardianship, and then specifies that custody of a minor who has not completed age of 5 years shall ordinarily be with the mother.

7. In above case, this Court after considering the fact that one children out of two was barely of 5 years, whereas the younger one was about 2 and a half year old, both of them were minor and not of an impressionable age, who deserves unqualified love, affection and protection of their mother, who is their natural guardian and therefore, the custody of both children were handed over to their mother by orders of this Court and their grand-mother was provided a visitation right once in a week and every Saturday between 12.00 noon to 05.00 P.M.

8. However, the facts of present case are different as out of two children whose question of custody is under consideration before this Court, one of them is minor girl, namely, Vaishnavi aged around 13 years and the other is male child, namely, Ram Soni aged around 10 years and both of them were produced befo