JUDGMENT : J.J. Munir,J. 1. Smt. Pushpa Devi @ Mahi and her husband, Devendra Kumar, are an estranged couple. They have two children, Shiva and Suraj, both minors. Shiva is aged five years old, whereas Suraj is three and a half years in age. Both the children currently stay with their father, Devendra Kumar, along with their grandmother, Smt. Neelam and their father’s brother, Dhan Singh. The mother says that the two children ought to stay with her in order to secure their welfare better. Devendra Kumar, the minors’ father, Smt. Neelam, their grandmother and Dhan Singh, their uncle, resist this claim. It is this tussle over the minors’ custody that has led Smt. Pushpa Devi @ Mahi to institute these proceedings for the issue of a writ in the nature of habeas corpus. 2. This petition was instituted on 31st of October, 2019. The proceedings in this case commenced on 05.11.2019, when notice was issued to Devendra Kumar to produce the two minors before the Court on 04.12.2019. The case was adjourned on 04.12.2019, awaiting a compliance report from the Chief Judicial Magistrate, Shahjahanpur. On 02.01.2020, the Court recorded that notice had been served upon respondent no.4 personally, but the minors have not been produced. The Chief Judicial Magistrate was directed to ensure the minors’ presence, attended with a direction to the Senior Superintendent of Police, Shahjahanpur to facilitate the process. On 21.01.2020, which was the date fixed for the return vide order dated 02.01.2020, the minors were produced, but their personal appearance was exempted until ordered otherwise. The case came up again on 10.02.2020 and was adjourned to 17.02.2020. There was then an adjournment from 17.02.2020 to 25.02.2020 and from 25.02.2020 to 04.03.2020. It must be remarked here that all proceedings until 19.10.2020 were taken without a formal admission of the petition to hearing. 3. On 19.10.2020, when the petition came up, a detailed order was passed, admitting the petition to hearing and ordering the Superintendent of Police, Shahjahanpur to cause the minors to be produced from the custody of respondent nos.4, 5 and 6 on the date of return, which was indicated to be 22.10.2020. It was also ordered that Devendra Kumar, the minors’ father and Smt. Pushpa Devi @ Mahi, the minors’ mother, who had effectively petitioned on behalf of the minors, shall also remain present in person. 4. It was also ordered that Devendra Kumar, the minors’ father and Smt. Pushpa Devi @ Mahi, the minors’ mother, who had effectively petitioned on behalf of the minors, shall also remain present in person. 4. On 22.10.2020, this Court after considering the overall circumstances of the case and particularly, the fact that the minors’ estranged parents were a young couple, thought it to be a possibility that their differences were reconciled. This the Court thought would best serve not only the interest of the estranged spouses, but the minors too. Bearing this in mind, both parties were referred to the mediation of the Allahabad High Court Mediation and Conciliation Centre vide order dated 22.10.2020. 5. The parties appeared before the Centre and two sessions were held on 22.10.2020 and 23.02.2020. The Centre’s report dated 23.10.2020 made in Mediation Case no.922 of 2020 indicates the following : “Mediation Completed. No agreement.” 6. The attempt to reconcile parties being not successful, the matter was taken up on 09.11.2020, but hearing could not proceed, as the minors were not produced. Their parents were also not present. Accordingly, by an order dated 09.11.2020, the Superintendent of Police, Shahjahanpur was again ordered to cause the minors to be produced on 11.11.2020. The case was heard on 11.11.2020 in the presence of Devendra Kumar, the minors’ father and Smt. Pushpa Devi @ Mahi, their mother, and judgment was reserved. 7. It must be remarked here that no counter affidavit was filed on behalf of respondent nos.4, 5 & 6, though Mr. Ajay Kumar Srivastava, learned Advocate appeared on their behalf. The facts before the Court are those, that are set out in the petition. There is no affidavit in rebuttal, though Smt. Pushpa Devi’s claim has been contested by respondent no. 4 at the hearing. 8. Heard Mr. Mazharullah, learned Counsel for the petitioners, Mr. Ajay Kumar Srivastava, learned Counsel appearing for the respondent nos.4, 5 and 6 and Mr. Jhamman Ram, learned A.G.A. appearing on behalf of the State. 9. Smt. Pushpa Devi @ Mahi and Devendra Kumar were married about five years ago. According to Pushpa, she was ill-treated by Devendra Kumar, her mother and Devendra’s brother, for the past two years. She was forcibly detained at her in-laws’ place and not permitted to go home and meet her parents. Her mother underwent a heart surgery. She requested Devendra, besides respondent nos. According to Pushpa, she was ill-treated by Devendra Kumar, her mother and Devendra’s brother, for the past two years. She was forcibly detained at her in-laws’ place and not permitted to go home and meet her parents. Her mother underwent a heart surgery. She requested Devendra, besides respondent nos. 5 and 6, to permit her to visit her mother. It is claimed by Pushpa that she was abused and assaulted by her husband and in-laws. She was then thrown out of her husband’s home and her two sons, Shiva and Suraj, were forcibly detained by Devendra and her in-laws. It is alleged that she was asked to pay her husband and in-laws a sum of Rs.5 lakhs, and upon doing that, she was told, she could take her sons along with her. She is said to have gone back to her parents and informed them about these unpleasant developments in her life. It is asserted that Pushpa and her parents requested Devendra, his mother and brother to permit them to meet Pushpa’s sons, but that request was declined. Pushpa then lodged a complaint with the Superintendent of Police, Shahjahanpur on 11.09.2019, detailing all that had befallen her. A copy of this complaint is on record as Annexure no.1 to the petition. This complaint did not elicit any action. Pushpa then approached the State Women Commission, Lucknow through a complaint dated 18.09.2019. A copy of this complaint, bearing an acknowledgment of receipt from the Women Commission, is also on record. 10. It also appears that on 06.09.2019, Pushpa’s sister Geeta had laid a complaint to the Superintendent of Police, Shahjahanpur, reporting the matrimonial violence and offence that Pushpa had suffered at the hands of her in-laws. A copy of this complaint of 6th September, 2019 is also on record. Pushpa also appears to have complained in the matter to the Chief Minister on 18.09.2019, a copy whereof has been annexed to this petition. 11. This Court has perused the material on record. The short issue involved in this petition is whether the two minor children of parties, Shiva and Suraj, should be relieved from the custody of their father, Devendra and entrusted to the care and custody of the mother, while the couple stay estranged. 12. This Court takes note of the fact that both Pushpa and Devendra are natural guardians of the two minors, being their parents. 12. This Court takes note of the fact that both Pushpa and Devendra are natural guardians of the two minors, being their parents. This is evident from the provisions of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (for short, ‘the Act of 1956’), which provide : “6. Natural guardians of a Hindu minor.—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; (b) in the 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). Explanation.—In this section, the expressions “father” and “mother” do not include a step father and a step-mother.” 13. There was at one time some cavil about the issue that the mother was the natural guardian after the father and, therefore, so long as the father was there, he alone could be regarded as the natural guardian. 14. The issue here is not about natural guardianship, but about the custody, which is different from guardianship. This aspect of the issue would be addressed a little later. For the present, it must be remarked that the natural guardianship of a minor under Section 6(a) of the Act of 1956 is no longer held by the father, in preference to the mother. The mother and the father are at par as natural guardians of the minor, in view of the law laid down by the Supreme Court in Githa Hariharan (Ms) and another vs. Reserve Bank of India and another, (1999) 2 SCC 228 . 15. As already said, the issue here is about custody and not guardianship. The mother and the father are at par as natural guardians of the minor, in view of the law laid down by the Supreme Court in Githa Hariharan (Ms) and another vs. Reserve Bank of India and another, (1999) 2 SCC 228 . 15. As already said, the issue here is about custody and not guardianship. Guardianship, natural or otherwise, is more about the right exercised by a person over a minor in relation to his person or property, while dealing with a third party on the minor’s behalf, or the minor himself. Custody is something related to the day-to-day care and supervision of the minor by an adult. Normally and invariably, guardianship and custody coalesce, but it need not always be so. There can be situations, where custody may be entrusted to a person other than the guardian, particularly, the natural guardian or between two natural guardians to one of them. 16. The proviso to Section 6(a) of the Act of 1956 is a statutory illustration about this distinction. Under the proviso to Section 6(a) last mentioned, the custody of a minor up to the age of five years, ‘ordinarily’ is to remain with the mother, notwithstanding the fact that both the father and the mother are natural guardians. This principle engrafted in the statute, represents the precipitate wisdom of generations amongst mankind, that the welfare of young children is better ensured by the mother’s caring hand than a father’s equally concerned supervision. 17. There is no cavil by now about the principle that in deciding who should have the minor’s custody between parents, or for that matter, whenever custody is to be entrusted to a guardian, natural or otherwise, welfare of the minor is of paramount importance. This principle is also statutorily embodied in Section 17 of the Guardians and Wards Act, 1890 (for short, ‘the Act of 1890’) and Section 13(1) of the Act of 1956. 18. In so far as young children are concerned, there is a strong presumption that the mother is better equipped to ensure their welfare than the father, though both the parents may be equally loving and sacrificing. This presumption in favour of the mother must be dispelled by cogent reasons, supported by glaring evidence about the mother’s lack of her natural ability to better take care of her children. This presumption in favour of the mother must be dispelled by cogent reasons, supported by glaring evidence about the mother’s lack of her natural ability to better take care of her children. There could be cases where the mother is differently abled, which handicaps her inherently in ensuring her young child’s welfare, or accused of an offence, involving moral turpitude, particularly, the homicidal death of the child’s father, or proven to be neglectful in her conduct towards the minor, where she habitually attends nightclubs and comes back home late. The last of the contingencies was acknowledged as good ground to throw off the presumption in the mother’s favour about a better welfare for the minor in her hands by this Court in Amit Bery vs. Sheetal Beri, AIR 2003 All 18 . 19. There is no fact pleaded, or evidence brought on record, to show that the welfare of the two minors, who are young boys, aged five years and three and a half years, would not be better secured by the mother. Here, the Court may refer to the guidance of the Supreme Court in Roxann Sharma vs. Arun Sharma, (2015) 8 SCC 318 , where it has been held: "13. The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the likelihood of the welfare and interest of the child being undermined or jeopardised if the custody is retained by the mother. Section 6(a) of the HMG Act, therefore, 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 contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this section or for that matter any other provision including those contained in the G and W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years." 20. In Roxann Sharma (supra), it has been further held: “18. We must immediately clarify that this section or for that matter any other provision including those contained in the G and W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years." 20. In Roxann Sharma (supra), it has been further held: “18. …..There can be no cavil that when a court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the Mother and this expectation can be deviated from only for strong reasons.....” (emphasis by Court) 21. This Court took note of the mother’s special role in ensuring welfare of a minor child in Habeas Corpus Writ Petition No.3921 of 2018, Aharya Baranwal and 3 others vs. State of U.P. and 2 others decided on 22.05.2019. In Ahrya Baranwal (supra), it was held : "21. Sometimes, a writ of habeas corpus is sought for custody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ-Court is 'welfare of the child'. 22. In Habeas Corpus, Vol. I, page 581, Bailey states; "The reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separated from him without the shadow of a pretence of justification; and yet the interests of the child may imperatively demand the denial of the father's right and its continuance with the mother. The tender age and precarious state of its health make the vigilance of the mother indispensable to its proper care; for, not doubting that paternal anxiety would seek for and obtain the best substitute which could be procured yet every instinct of humanity unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her offspring, is prompted by deeper and holier feeling than the most liberal allowance of nurses' wages could possibly stimulate." 23. It is further observed that an incidental aspect, which has a bearing on the question, may also be adverted to. In determining whether it will be for the best interests of a child to grant its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment.” (emphasis supplied) 22. The issue of a minor’s welfare, where he is a young child, below or about five years, came up before me for consideration in the context of Section 6(a) of the Act of 1956 in Master Atharva (Minor) and another vs. State of Uttar Pradesh and 7 others, 2020 (143) ALR 332, where it was held: “9. A reading of the terms of the proviso to Section 6 shows that quite apart from the question of natural guardianship, the custody of a minor, who has not completed the age of five years, is to be ordinarily with the mother. The only niche, therefore, so far as the statue goes, is the word "ordinary". The word "ordinary" signifies that as a matter of rule, children up to the age of five years are to be left with their mothers, but there could be exceptions as well. Those exceptions could be where the mother is demonstrably leading an immoral life or may have remarried, where in her new home, the child from her earlier alliance has no place, or where the mother is convicted of a heinous offence etc. In the present case, no such circumstance has been indicated, much less pleaded and proved so as to place the mother in that exceptional category where she may be deprived of the custody of her young child, who is still well below the age of five years. 10. It must also be remarked that even after the child turns five, it is not that the mother becomes disentitled. She still would be the best person to tender a child and groom him into an adult. In this connection, reference may be made to the decision of the Supreme Court in Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 , where it has been held: "13. She still would be the best person to tender a child and groom him into an adult. In this connection, reference may be made to the decision of the Supreme Court in Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 , where it has been held: "13. The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the likelihood of the welfare and interest of the child being undermined or jeopardised if the custody is retained by the mother. Section 6(a) of the HMG Act, therefore, 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 contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this section or for that matter any other provision including those contained in the G and W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years." 23. During the hearing of this matter, this Court interacted with both the parents, that is to say, Devendra and Pushpa Devi @ Mahi. The Court also interacted with the elder of the two children, to wit, Shiva in order to ascertain his wishes about the parent he would like to stay with. This course of action was adopted because the Court found that Shiva, though a child of five years, is a bright child, who could express an intelligent choice about the parent he would like to be with. During this interaction, this Court was told by Devendra that he works as an unskilled casual labourer, earning a daily-wage to the tune of Rs. 200 -300/-. He can garner a monthly income of Rs.7000 -8000/-. He has, amongst his family, besides the minors, his mother, five nieces and a brother. He told the Court that the minors are looked after by his nieces. About the children’s schooling, he said that they used to attend school before the lock-down, but, for the present, they were not. He can garner a monthly income of Rs.7000 -8000/-. He has, amongst his family, besides the minors, his mother, five nieces and a brother. He told the Court that the minors are looked after by his nieces. About the children’s schooling, he said that they used to attend school before the lock-down, but, for the present, they were not. He also candidly accepted the fact that he is absolutely illiterate. He said that the older of the two children, Shiva, is five years old and the younger three and a half years. Here, this Court must remark that the mother has said in paragraph no.12 of the petition, the affidavit in support whereof sworn on 15th December, 2019, that Shiva is four years old and Suraj one year and a half. This petition was heard on 11.11.2020 and by a reckoning in time, Shiva would indeed be five years, according to both parties. There is some discrepancy about Suraj’s age. That, however, need not detain this Court to ponder over and decide the precise age of the two minors. Broadly speaking, they are young children, where the elder of them is five years old and the younger, definitely less than five years. 24. The mother told the Court that she has read up to Class-VIII and is, therefore, better educated than the husband. She works at home and said that she had her mother, father and brother in her family, with whom she stays. The family are engaged in agriculture. On being asked whether she and her family would be willing to raise the children, she said that they would be more than willing. As she said this, this Court noticed that Shiva, who was present in Court, yearned to be in his mother's custody and seem to be quite familiar with her. To the contrary, he appeared rather estranged from his father. Pushpa, on being particularly asked whether there was a school around the place where her family lives, said that there was an English Medium School there. She told the Court that that she stays in a place called Bhurwa Sumerpur in the district of Hamirpur. 25. This Court also interacted with the elder child, Shiva. As already remarked, Shiva appears to be quite a bright child and well aware of matters around him. He introduced himself to the Court, on being asked to do so, quite confidently. 25. This Court also interacted with the elder child, Shiva. As already remarked, Shiva appears to be quite a bright child and well aware of matters around him. He introduced himself to the Court, on being asked to do so, quite confidently. The Court asked Shiva about his choice in the matter of the parent he would like to be with, given the circumstances. He said in unequivocal words that he would like to stay with his mother. This Court noticed that the child, while saying so, was extremely delighted about the idea and looked forward to staying with his mother. 26. It must be noticed that there are some very salient points, on the basis of which, the issue about the custody of a minor is to be decided in a given case, laid down by the Supreme Court in Nil Ratan Kundu and Another v. Abhijit Kundu, (2008) 9 SCC 413 . In Nil Ratan Kundu, it has been held: “Principles governing custody of minor children 52.In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.” 27. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.” 27. What this Court notices in the present case is the fact that both Shiva and Suraj are very young children, with Shiva just turning five. Suraj is one below his fifth year. The principle embodied in the proviso to Section 6(a) of the Act of 1956 is not to be applied like a statutory cutoff. It has to be understood and applied in its spirit, which is no more than this, that generally speaking, and invariably, the welfare of a minor child can be better secured by the mother in comparison to the father. It is not that the moment the child turns five, or crosses that age by a few months, the preference for the mother would be nullified. There are many factors that must enter consideration, before deciding upon the question of the minor's welfare. It is to be judged not only by the financial capacity, but the time, attention and care that one parent or the other can better provide. It is also about the moral grooming of the child, which is a very important factor. The prospects of education of the child are still more important, apart from health and other myriad factors. Amongst all these, in a case where the child can express an intelligent choice about his preference, it is one important factor, which must enter into consideration while deciding the question of custody. 28. This Court finds that Pushpa Devi @ Mahi, the minors' mother is better educated than the father, who is an illiterate. There is also no better comfort or environment in the father's home, compared to that of the mother’s, which this Court was able to gather. The father has his mother, brother and nieces living with him, with the nieces being left to care for the minors. The father earns his livelihood by working as an unskilled casual labourer. His pursuit for livelihood would leave him no time to extend any personal care to the minors. The father has his mother, brother and nieces living with him, with the nieces being left to care for the minors. The father earns his livelihood by working as an unskilled casual labourer. His pursuit for livelihood would leave him no time to extend any personal care to the minors. It is for this reason that he has to leave the minors to the care of his nieces. Between the father's nieces, who are the minors' cousins and the minors' mother, decidedly, the mother's constant care and supervision would ensure a better welfare for the two minors here. The slightly better education of the mother than the father, would also augur well for the minors' prospects in the matter of their education. There is an English Medium School about the place where the mother resides and this fact has not been challenged by the father. 29. There is no doubt that the two minors would be admitted to a suitable institution of formal instruction/ school in order to equip them educationally. At the same time, the father, as already said, busy as he is with earning his daily bread, the minors might be neglected, resulting in either of them or both, going wayward in life. On the other hand, the mother stays home and would, therefore, be better equipped to exercise a closer vigil over the minors' daily activities. 30. In the circumstances, this Court is of opinion that the minors, Shiva and Suraj, ought to remain in their mother's custody and care. At the same time, Devendra, being their father too, cannot be deprived of their company altogether, and the minors, his paternal affection. This can be ensured by ordering a suitable schedule of visitation for the father, where he could meet the minors and spend time with them, as they stay with their mother. 31. In the opinion of this Court, it would be appropriate in the circumstances that the father may be permitted to meet both, Shiva and Suraj, once every fortnight between 10:00 a.m. to 2:00 p.m. Devendra can meet the minors either on alternate Sundays or any other week day, suitable to him, going by the contingencies of his engagement, which he may intimate to Pushpa Devi @ Mahi. The visitation, as aforesaid, shall be adjusted by the parties by mutual consent about the day of visitation, but with the restriction that there have to be two visitations every month. This arrangement would continue till Shiva and Suraj attain the age of majority. 32. This habeas corpus writ petition succeeds and is allowed. The rule nisi dated 19.10.2020 is made absolute in the terms that the custody of two minors, Shiva and Suraj, shall be entrusted by Devendra to Smt. Pushpa Devi @ Mahi within a week of delivery of this judgment at Pushpa's home, located in Village and Post Bhurwa Sumerpur, District of Hamirpur. In the event of default, the Chief Judicial Magistrates, Hamirpur and Shahjahanpur, in coordination amongst themselves and the Superintendent of Police, Shahjahanpur shall cause the custody of the two minors, Shiva and Suraj, sons of Devendra Kumar, to be delivered to their mother, Smt. Pushpa Devi @ Mahi at her home in the district of Hamirpur. 33. Let this order be communicated to the learned Chief Judicial Magistrate, Hamirpur, the learned Chief Judicial Magistrate, Shahjahanpur and the Superintendent of Police, Shahjahanpur, by the Joint Registrar (Compliance).