JUDGMENT Jagdish Sahai, J. - This a petition for a writ of habeas corpus and for an order under Sec, 491(1) (b), Cr. P. C. The petitioner Smt. Rita Rani Singh is the wife of the respondent Sri Raghuraj Singh. They have a child named Alka. The petitioner's allegations are as follows: 2. The relations between the parties became strained and they started living separately, the petitioner in Allahabad and the respondent at Bulandshahr. The respondent came to Allahabad in a taxi and on the 23rd of May, 1962, took the petitioner, their child Km. Alka and the petitioner's sister Merlin P. Tewari to an evening show at Palace theatre in Civil Lines, Allahabad, while the cinema show was on Km. Alka started crying and the respondent took her outside the cinema hall on the pretext of quietening her. He, however, did not return inside the hall and left with the child on his taxi for Bulandshahr. The present age of Km. Alka is 2 years. The petitioner made an application under Sec. 11 of the Guardians and Wards Act in the court of the District Judge, Allahabad for being appointed the guardian of Km. Alka. That petition was dismissed on the finding that the District Court of Allahabad had no jurisdiction to decide the case. On these facts the petitioner has prayed for the following reliefs :- (i) issue a writ, order or direction in the nature of Habeas Corpus commanding the opposite party to produce in this Court the minor child named Alka alias Babli, the daughter of the petitioner and the opposite party. (ii) deliver the child to the petitioner who is entitled to her custody. (iii) award cost of this petition to the petitioner and (iv) pass such other and further order as it deems fit and proper. Admittedly the order passed by the learned District Judge, Allahabad is appealable under Sec. 47 of the Guardians and Wards Act. Even if the petitioner acquiesced in the finding recorded by the learned District Judge, Allahabad, and does not want to file an appeal against that order in this Court, she can present a fresh application under Sec. 11 of the Guardians and Wards Act in the court of the District Judge, Bulandshahr, who would have .jurisdiction to try the same. The petitioner thus has got clear alternative remedy. We, therefore, enquired from Mr. The petitioner thus has got clear alternative remedy. We, therefore, enquired from Mr. Dubey as to why does he not avail of the alternative remedy provided by the law. The only answer that he gave was that the chances of the appeal succeeding in this Court against the order of the District Judge, Allahabad, were meagre and that in the event of his filing a fresh application under Sec. 11 of the Guardians and Wards Act he may not be able to obtain an interim order from that court transferring the custody of Km. Alka to the petitioner. Only because an interim relief cannot or would not be granted by the learned District Judge is no ground for admitting the present writ petition in disregard of the alternative remedy. In State of Orissa v. Madan Copal Rungta, A.I.R. 1952 S.C. 12 their Lordships held that no writ petition can be admitted only in order to grant an interim relief. It is true that there is no bar to the entertainment of this petition by this Court notwithstanding the alternative remedy but on merits also the petitioner has no case for a writ of habeas corpus or for an order under Sec. 491, Cr. P. C. Admittedly, the respondent is the father of Km. Alka and it cannot be said that the latter is in the illegal custody of the former. The writ of habeas corpus is a legal process designed and employed to give summary relief against illegal restraint of personal liberty. It is not the petitioner's case that Km. Alka is being detained against her will. In fact she can have no will at her age other than the one of her guardian who as we would show a little later is the respondent. Consequently, it appears to us that the petition is misconceived. 3. Learned counsel contended that the natural guardian of a female child aged 2 years is the mother and not the father and consequently the custody of the child with the father is unlawful. In support of this contention learned counsel has placed reliance upon Cl. (a) and specially the words italicized in Sec. 6 of the Hindu Minority and Guardianship Act, 1956, which reads as follows: "6. In support of this contention learned counsel has placed reliance upon Cl. (a) and specially the words italicized in Sec. 6 of the Hindu Minority and Guardianship Act, 1956, which reads as follows: "6. 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; . . . . . . . . . . . . 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, (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 expression "father" and "mother" do not include a step-father and a step-mother." Learned counsel overlooks the use of the word "ordinarily" in the words italicized. There is no absolute bar to the custody of a child below five years of age remaining with the father. All that the words intalicised mean is that normally the mother would be entitled to the custody of the child less than five years of age but there is nothing either in Sec. 6 or any other provision in the Hindu Minority and Guardianship Act, 1956, or any other law which would render the custody of a child less than five years of age with the father an illegality. Sec. 6 of the Hindu Minority and Guardianship Act, 1956, clearly provides that the natural guardian of a minor, whatever be his or her sex of age, both in respect of her person and property, is the father. Therefore Mr. Dubey's contention that in the present case the petitioner, to the exclusion of the respondent, is the natural guardian of Km. Alka is not substantiated either by Sec, 6 of the Hindu Minority and Guardianship Act or by any other provision of law. In fact the position is just the reverse. There is a difference between a right to guardianship and a right to custody. Alka is not substantiated either by Sec, 6 of the Hindu Minority and Guardianship Act or by any other provision of law. In fact the position is just the reverse. There is a difference between a right to guardianship and a right to custody. Therefore even when the custody remains with the mother the guardianship is retained by the father and how and in what manner would the child be brought up and what would be for her welfare is for the father to decide. Therefore the position is that even though ordinarily Km. Alka should remain in the custody of the petitioner till she (Km. Alka) attains the age of five years, her (Km. Alka's) guardian is the respondent. In that view also it is difficult for us to accept the contention that the custody of Km. Alka with the respondent is illegal custody and amounts to unlawful restraint. We have already said that there is no inflexible rule that the father cannot have the custody of a child below five years of age. That being so we are unable to see how a writ of habeas corpus or an order under Sec. 491, Cr. P. C. can be issued in this case. It is contended that even though the guardian of Km. Alka be the respondent her custody should be transferred to the petitioner. For such a relief a petition for a writ of habeas corpus or an order under Sec. 491, Cr, P. C. is misconceived. The proper approach in such a case would be one under Sec. 11 of the Guardians and Words Act, i.e. for the appointment of a guardian or a suit in a competent court of law for the custody of the child. 4. It was then contended that equitable considerations require that this Court may direct the respondent to hand over Km. Alka to the petitioner. In the first place the habeas corpus is a legal and not equitable remedy and secondly there is no question of equitable considerations in a case like this. 5. Learned counsel for the petitioner has relied upon Deputy Commissioner, Gonda v. Nawab Mohammad Shikoh, A.I.R. 1934 Oudh, 392. Alka to the petitioner. In the first place the habeas corpus is a legal and not equitable remedy and secondly there is no question of equitable considerations in a case like this. 5. Learned counsel for the petitioner has relied upon Deputy Commissioner, Gonda v. Nawab Mohammad Shikoh, A.I.R. 1934 Oudh, 392. In that case the Deputy Commissioner of Gonda had made an application under Sec. 491, Cr, P. C. to the erstwhile Chief court of Oudh for the issue of a direction in the nature of habeas corpus to secure the custody as guardian of two minor sons, Raja Mustafa Ali Khan aged 11 years and Kunwar Iqbal Ali Khan aged 7 years, of a Taluqdar, whose estate on his death had been taken over by the Court of Wards for management. The application was contested by the mother of the minor sons of the late Raja as also by one Mohammad Shikoh with whom the children were living. Srivastava, J. observed as follows:- "However, in the present case the right of the appellant applicant to get any relief under the Guardians and Wards Act seems to me to be very doubtful. Sec. 25 of that Act which has been referred to in this connexion deals with the case of a ward who "leaves or is removed from the custody of a guardian of his person." In this case it is common ground between the parties that the minors were brought to Lucknow on the 16th or 17th March' about twelve days before the Court of Wards assumed superintendence of their person. It seems very doubtful if Sec. 25 can have any application to such a case in which the ward never came in the custody of the guardian, and could not therefore be said to have left it or been removed from it." The case is clearly distinguishable on facts inasmuch as under the provisions of Sec. 26 of the U.P. Court of Wards Act the Court of Wards had exclusive jurisdiction to decide in respect of the residence and education of minor wards and under the provisions of Sec, 27 to appoint guardians of minor wards. With regard to the estate under the management of the Court of Wards the provisions of the Court of Wards Act would over-ride other statutory provisions. With regard to the estate under the management of the Court of Wards the provisions of the Court of Wards Act would over-ride other statutory provisions. It would be noticed that under Sec. 119 of the Guardians and Wards Act no guardian of the person or property of a minor ward of the Court of Wards can be appointed by the Court. The Oudh case only reiterates the well recognised principle that a writ of habeas corpus can be issued at the instance of a guardian of a minor and there was no con test in that case between the father who is the guardian and the mother of the children. That case, therefore, cannot provide a precedent to us for deciding the instant case. 6. Reliance was then placed on Subbaswami Goundan v. Kamakshi Ammal, AIR 1929 Madras 834. In that case there was a contest between the husband of a minor girl and her mother and step brother. The Madras High Court upheld the right of the husband guardian. We do not see how this case can be used against the respondent who is guardian of Km. Alka. 7. In Umalakshmi Saraswati Bai v. Y.T.S. Narayana Sastry, (1910) 8 T.C. 393 the father of two minor girls aged 14 and 16 years applied for an order under Sec. 491, Cr. P. C. against his younger brother for the surrender of the minor girls. The petition was dismissed on the finding that the petitioner having become a sanyasi had lost right to guardianship of the minors. That case does not apply to the facts before us. 8. The next case on which reliance is placed is A.H. Pollard v. F. Rouse, (1910) 33 I.L.R. Mad. 288. That was a case of an application for an interlocutory injunction in a suit filed by Mr. A.H. Pollard, proprietor and manager of the Lilliputian Opera Company against Mr. F.H. Rouse, Consulting Engineer, residing at Bengalore. The plaintiffs troupe consisted of minors under articles of apprenticeship to him and the suit was brought against the defendant for procuring these apprentices to break their contracts with the plaintiff and removing them from his custody and giving performance by their aid and depriving the plaintiff of their guardianship. F.H. Rouse, Consulting Engineer, residing at Bengalore. The plaintiffs troupe consisted of minors under articles of apprenticeship to him and the suit was brought against the defendant for procuring these apprentices to break their contracts with the plaintiff and removing them from his custody and giving performance by their aid and depriving the plaintiff of their guardianship. The prayer in the plaint was that the minors may be delivered up to the plaintiff and the defendant restrained from giving performance by their aid and an account of the defendant's profits. The interlocutory motion directed for an in junction restraining the defendants from giving any further performance with the aid of the minors and from removing them from the jurisdiction of the court or sending them back to Australia pending disposal of the suit. That was not a case between the father and the mother of a minor child and is clearly distinguishable. 9. The last case on which reliance is placed is Gohar Begurn v. Suggi alias Nazma Begum, A.I.R. 1960 S.C. 193. In that case the Supreme Court held that the mere fact that an alternative remedy was provided for by the Guardians and Wards Act would not justify the rejection of an application under Sec. 491, Cr. P. C. We are not rejecting the present application on the ground of alternative remedy but on merits, Learned counsel relied upon that case also as an authority for the proposition that the mother is entitled to maintain a writ of habeas corpus in order to obtain the custody of her child whosoever may be having it. That was a case where a Muslim woman and a singing girl by profession applied under Sec. 491, Cr. P. C. for the custody of her minor illegitimate daughter aged six years from that of her mother's sister. The High Court rejected the application on the ground that such a matter should be dealt with under the provisions of the Guardians and Wards Act. The Supreme Court reversed the finding of the High Court and holding that an alternative remedy was not absolute bar against maintenance of a petition for a writ of habeas corpus or for an order under Sec. 491, Cr. P. C. directed that the girl should be handed over to the mother. The Supreme Court reversed the finding of the High Court and holding that an alternative remedy was not absolute bar against maintenance of a petition for a writ of habeas corpus or for an order under Sec. 491, Cr. P. C. directed that the girl should be handed over to the mother. In that case the contest was not between the father and the mother as is the case before us. This case also therefore does not help the petitioner. No other case has been brought to our notice, in our opinion there are no merits in this petition. It is accordingly rejected.