1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 683 OF 2009 Shri Sanjog Satish Vilankar ...Petitioner VS. Mrs.Sneha Sanjog Vilankar & Anr. ...Respondents Ms.Prayadarshini Birje for the Petitioner. Mr.Harshad Bhadbhade for Respondent No.1. Mrs.R.V.Newton, APP for the State. CORAM : V.M. KANADE, J. DATED : MARCH 19, 2010 P.C. :- 1 Heard Counsel for the petitioner and Counsel for the respondent. 2 The matter was referred to a Mediator. The mediator has submitted his report. In the report, he has stated that in spite of best efforts taken by him, there was no re-conciliation between the petitioner and the respondent. 2 3 The petitioner has filed this petition challenging the interim order passed by the learned Magistrate dated 12th February, 2009 which was also confirmed in appeal by order dated 6th March, 2009. 4 An application was filed by the respondent- wife for the custody of the children before the Metropolitan Magistrate by filing an application under Section 19 of The Protection of Women from Domestic Violence Act, 2005. In the said application, she had asked for the custody of the two children who are 8 years and 5 years old. An interim order was passed by the learned Magistrate and by the said interim order, the learned Magistrate directed that the custody of the child who was 5 years of age should be given to the mother. This order was confirmed by the Sessions Court. 5 Counsel for the petitioner submitted that 3 the respondent-mother did not take steps for a period of six months after she left the matrimonial home and thereafter, this application has been filed belatedly to harass the petitioner. It is further submitted that taking into consideration the welfare of the children, the learned Magistrate ought to have given the custody of the minor child to the petitioner since he is in a better position to look after both the children. It is submitted that the petitioner is residing in Chiplun where the respondent wife is residing in a small village in District Ratnagiri. It is submitted that the father would be in a position to give better education to the children. It is submitted that the admission was already given to the minor child who is 5 years of age in a English medium school and therefore, it was necessary that the custody should immediately be given to the petitioner herein. 6 On the other hand, the learned Counsel for the respondent-wife submitted that the wife is 4 working as a teacher in English medium school and under Section 6 of the Hindu Minority and Guardianship Act, the mother is the natural guardian of the child below 6 years of age. It was further submitted that since an interim order was passed, no case was made out for interfering in this order by the petitioner herein. 7 In my view, there is some substance in the submission made by the learned Counsel for the respondent. The main application is yet to be heard and only by way of interim arrangement, the custody has been given to the wife. Section 6 of the Hindu Minority and Guardianship Act, 1956 lays down as under :- 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- 5 (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 becoming a hermit (venaprastha) 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. 8 Perusal of the aforesaid section clearly reveals that in cases of children below 5 years of 6 age, the mother should ordinarily be a natural guardian and also is a teacher and the submission that the child is given admission in the same school where she is working. Taking into consideration this fact, no case is made out by the petitioner for interfering with the order passed by the lower courts. 9 The petition, accordingly, is dismissed. Hearing of the main Criminal Application No.5/2009 is expedited. (V.M. KANADE, J.)