REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11 OF 2010
(Arising out of SLP ) No. 24148 of 2007)
Athar Hussain. -----Appellant
Versus
Syed Siraj Ahmed & Ors. ----Respondents
JUDGMENT
TARUN CHATTERJEE, J.
1. Leave granted.
2. This appeal is directed against the judgment and order
dated 8th of October, 2007 passed by the High Court of
Karnataka at Bangalore by which the High Court had set aside
the order dated 11th of June, 2007 of the Family Court,
Bangalore vacating its order of injunction dated 21st of April,
2007 passed against the appellant in G.W.C. No. 64 of 2007
preventing him from interfering with the custody of his
children with the respondents.
3. The appellant is the father of the minor children in whose
respect interim custody and guardianship have been sought
1
for. The respondent No.1 is the maternal grandfather of the
two minor children of the appellant and respondent Nos. 2, 3
and 4 are their maternal aunt and uncles.
4. The appellant married one Umme Asma, daughter of
respondent No. 1, in accordance with Islamic rites and
customs on 31st of March, 1993. Two children were born out of
the wedlock, Athiya Ali, aged about 13 years and Aayan Ali ,
aged about 5 years. Their mother Umme Asma died on 16th of
June, 2006. Subsequent to the death of Umme Asma, the
mother of two minor children, the appellant again married to
one Jawahar Sultana on 25th of March, 2007 who in the
pending proceeding had filed an application before the Family
Court for her impleadment in the same.
5. A proceeding was initiated on 21st of April, 2007 at the
instance of the respondents under Sections 7, 9 and 17 of the
Guardian and Wards Act, 1890 (hereinafter referred to as `the
Act') in the Court of the Principal Family Judge, Bangalore
which came to be registered as G.W.C.No.64 of 2007. In the
aforesaid pending proceeding under the Act, an application
was filed under Section 12 of the Act read with Order 39 Rule
2
1 and 2 of the Code of Civil Procedure (in short `the Code') in
which interim protection was prayed for of the persons and
properties of the minor children and also for an order of
injunction restraining the appellant from interfering or
disturbing the custody of two children till the disposal of the
application filed under Sections 7, 9 and 17 of the Act. The
case that was made out by the respondents in the affidavit
accompanying their application for injunction filed under
Section 12 of the Act read with Order 39 Rule 1 and 2 of the
Code was a follows :-
6. On the same day on which the respondents filed the
applications for being appointed as guardians and for interim
injunction against the appellant, i.e. on 21st of April, 2007, the
Family Court disposed of the application under section 12
read with Order 39 Rule 1 and 2 of the CPC, and passed an ex
parte interim order restraining the appellant from interfering
with the custody of the two children of the appellant.
7. Feeling aggrieved, the appellant filed an application
against the order of the family court under Order 39 Rule 4 of
the Code praying for vacation of interim order of injunction
3
passed against him. In the Counter Affidavit accompanying
the application filed on 28th of April, 2007 to vacate the interim
order of injunction, he denied all averments made in the
application filed by the respondents as incorrect and
fabricated. It is not in dispute that the appellant is the father
and natural guardian of the children. While respondent no.1 is
aged about 72 years and is retired and hence is in no position
to look after his children, respondent no.2 is living separately
after his marriage; respondent nos. 3 and 4 are nearing the
age of marriage and would go ahead with their own lives once
married. Further respondent no.1 has another son whose wife
divorced him on account of harassment for dowry and another
daughter who was mentally retarded. These heavy
responsibilities which already lie on the respondent make him
unfit as a guardian of his children. The only motive of the
respondents is to gain the property that the appellant had
purchased in favour of Umme Asme.
8. Pursuant to a telephonic request made by respondent
no.3, he dropped his children at their place on 21st of April,
2007. When he went back to collect them on 22nd of April,
4
2007, he was informed that they would be back only at night.
On 23rd of April, 2007, he was told that the children had gone
to Ooty and would return after a few days. Since the appellant
had reasons to suspect the bonafide of the respondents, he
lodged a complaint before the Inspector of Police, J.C. Nagar,
Bangalore on 23rd of April, 2007. The respondents who were
summoned to the police station gave an undertaking to the
effect that the children would be back on 24th of April, 2007. It
is alleged that though the respondents had procured the
interim order of injunction on 21st of April, 2007 itself, they did
not inform either the appellant or the Police authorities until
25th of April, 2007 on which day they produced the copy of the
interim order to the appellant.
9. Appellant further alleged that his daughter had been
missing classes as she was unduly retained by the
respondents, who had no concern whatsoever with respect to
the same.
10. The death certificate clearly showed leukemia as the sole
cause of death of Umme Asma, contrary to the allegations of
the respondents. He had deeply loved his wife and as a token
5
of his love, had purchased a property in her name on which he
constructed house entirely in accordance with her wishes.
Contrary to what the respondents had alleged, all the
expenses for the treatment of his wife and the education of the
children were borne by the appellant. His relationship with his
deceased wife and the children were indeed cordial. In order to
secure education of high quality for his daughter, he got her
admitted into a good school and had borne all related
expenses, as proved from the receipts issued by the school
authorities. He had also obtained an insurance policy in the
name of his daughter.
11. It is for the vengeance of the appellant's refusal to marry
respondent no.3 who wished to marry him after the death of
her sister, that they had filed the application claiming custody
and guardianship of the children. The photographs produced
before the Court were taken when the appellant himself took
the respondents on an excursion along with his family in his
own car. The mark sheets produced by the respondents bore
forged signatures of the appellant whereas the documents
bearing his own signature were not produced.
6
12. In short, the appellant submitted that in view of
suppression and concealment of material facts on part of the
respondents, they were not entitled to the equitable relief of
injunction. Moreover, he had a prima facie case and the
balance of convenience stood in his favour. Irreparable injury
would be caused to him as the father of the minor children
who would not be safe in the hands of the respondents.
13. The family court by its order dated 11th of June, 2007
vacated the interim order of injunction granted on 21st of April
2007. The Court found that the respondents had neither
prima facie case nor balance of convenience in their favour,
nor vacating the ex parte interim order would cause
irreparable injury to them. It was also the finding of the family
court that the respondents did not approach the Court with
clean hands. The Court found that in support of their
contention that Umme Asma died due to the assault cast upon
by the appellant, the respondents had not been able to
produce any material evidence; nor was any case filed against
the appellant. This appears in contrast to their contention that
after the death of Umme Asma, her relatives had enquired
7
about the marks on her face which occurred when the
appellant had hit her. If this was the case, the respondents
would have initiated an enquiry much before, not when almost
ten months had expired after the death of Umme Asma. This
prolonged silence, according to the trial court, renders the
version of the appellant probable that it is to wreck vengeance
towards him who refused to marry the respondent no.3 that
the entire proceedings had been launched. The death report
produced by the appellant, on the other hand, supports the
version of the appellant of bone cancer being the cause of his
wife's death. The fact that he bore with all medical expenses is
also supported by evidence. The appellant has also been able
to produce the sale deed of the property which he claims to
have purchased in his wife's name out of his love and affection
for her.
14. The undertaking given by the respondents before Police
Authorities with respect to the complaint filed against them by
the appellant also strengthens the version of the appellant that
as a matter of course, the children stayed with the appellant
and that it was the respondents who took them away without
8
his sanction. It is pertinent to note that the respondents did
not produce the temporary order of injunction at the time they
were asked to file the said undertaking to the Police
Authorities. The various receipts produced by the appellant as
evincing the expenses he incurred for his wife and children
were also considered. Thus it was found that the respondents
had no prima facie case.
15. The Family Court found the balance of convenience also
leaning in favour of the appellant, who is admittedly the
natural guardian of the children. The photographs produced
by both the parties were considered as indicating the bond the
children shared with both. It was found that they were also
happy in the company of their step mother. Though Athiya
had stated that she was not willing to go with her father, the
Family Court felt that it could be no consequence as she was
not old enough to form a mature opinion and was susceptible
to tutoring. The fact that the son went to the appellant when
he saw him in the Court premises indicated that the children
were close to the appellant. Accordingly, balance of
convenience was found tilting in favour of the appellant.
9
16. Irreparable injury will be caused to the father if he is
denied interim custody as he is the natural guardian of the
children, the care and concern for whom he had established in
various ways. Keeping in view the fact that welfare of the
children is the paramount consideration, it was noted that the
respondent nos. 2 and 3 would get married and start living
separately while respondent no.1 is an aged person. Therefore,
the appellant was more competent and fit than all to take care
of the children. In order not to deprive the children of the love
and affection of their maternal relatives, the appellant had
agreed to leave the children at the respondents' place on every
alternate Saturday and for five days at the beginning of the
summer vacation which shows his magnanimity and
generosity.
17. The contentions of the respondents were not supported
by documentary evidence and, therefore, the Family Court was
of the opinion that they had not approached the Court with
clean hands. Hence, the equitable remedy of injunction could
not be granted to them.
10
18. Therefore, by its order dated 11th of June, 2007, the
Family Court vacated the ad-interim order of temporary
injunction restraining the appellant from interfering with the
custody of the children with the respondents.
19. Aggrieved by this order, the respondents filed a Writ
Petition which came to be numbered as W.P. No. 9177 of 2007
before the High Court of Karnataka at Bangalore. Before the
High Court, the respondents contended that the parties would
be governed by Mohammaden Law which dictates that in the
absence of the mother, maternal grand parents shall be the
guardian of minor children. It was further contended that the
second marriage of the appellant disentitles him to the
custody of children. Further, when the children are capable of
forming their opinion, they should be allowed to exercise their
option with respect to which of the parties they would go with.
The well being of the children which is the paramount
consideration in matters of custody was not taken into
account by the Family Court whose order is liable to be set
aside on this count alone.
11
20. The appellant, in response to these submissions,
contended that the High Court could not interfere with the
findings of the Family Court unless serious infirmity is proven.
The decisions cited by the respondents were distinguished on
the ground that these decisions concerned findings that were
recorded after a full fledged trial and not an order passed as
an ad-interim relief granting custody to one of the parties.
21. On consideration of these arguments, the High Court by
its order dated 8th of October 2007 had set aside the order of
the Family Court by which it had vacated the interim order of
injunction and passed the following directions:
a. The impugned order is quashed.
b. The respondent father will have visiting rights and
shall visit his two children on every Sunday between
9 a.m. and 5 p.m. The father is permitted to take
out the children to any place of his and children's
choice and shall bring back the children to
petitioner's house. This arrangement shall continue
pending disposal of the proceedings before the
learned Family Judge.
12
c. Having regard to the sensitive issue involved i.e. as
to the guardianship of the minor children, the
learned Family Judge is directed to conclude the
proceedings within six months from the date of
receipt of the copy of this order.
d. Any observation made during the course of this
order is only for the purpose of considering as to
where the children should stay during the pendency
of the proceedings. It shall not be treated as a
finding on the merits of the case. The learned
Family Judge shall not be swayed by any of the
observations made during the course of this order.
22. The High Court in its impugned judgment had held that
while appointing the guardian or deciding the matter of
custody of the minor children during the pendency of
guardianship proceedings, the first and foremost consideration
for the Court is the welfare of the children. The factors that
must be kept in mind while determining the question of
guardianship will apply with equal force to the question of
interim custody. It was observed that the Family Court should
13
have delved a little deeper into the matter and ascertained
where the interest of the children lay, instead of recording
abstract findings on questions of prima facie case, balance of
convenience and irreparable injury.
23. The terms on which the appellant and his deceased wife
were, the manner in which the respondents obtained the
custody of the children are questions that should be
determined during the course of trial.
24. Though when the children's father is not unfit otherwise
he shall be the natural guardian, a child cannot be forced to
stay with his/her father. According to the High Court, merely
because the father has love and affection for his children and
is not otherwise shown unfit to take care of the children, it
cannot be necessarily concluded that welfare of the children
will be taken care of once their custody is given to him. The
girl had expressed a marked reluctance to stay with her father.
The High Court was of the opinion that the children had
developed long standing affection towards their maternal
grandfather, aunt and uncles. It will take a while before they
develop the same towards their step mother. The sex of the
14
minor girl who would soon face the difficulties of attaining
adolescence is an important consideration, though not a
conclusive one. She will benefit from the guidance of her
maternal aunt, if custody is given to the respondents, which
the appellant will be in no position to provide. Further, there is
a special bonding between the children and it is desirable that
they stay together with their maternal grandfather, uncles and
aunt.
25. In case of custody of the minor children, the Family Law,
i.e. the Mohammedan Law would apply in place of the Act.
Considering the provisions under Section 353 of the
Mohammedan Law, the High Court had held that the
preferential rights regarding the custody of the minor children
rests with the maternal grandparents. After making a doubtful
proposition that in case of a conflict between personal law and
welfare of the children the former shall prevail, the High Court
held that in the case at hand there is no such conflict.
26. For the reasons aforementioned, the High Court by its
impugned order set aside the order of the Family Court,
15
Bangalore which vacated the interim order of injunction
issued against the appellant.
27. It is this order of the High Court, which is challenged
before us by way of special leave petition which on grant of
leave has been heard by us in the presence of the learned
counsel appearing on behalf of the parties.
28. It was the contention of the appellant before us that the
Act will apply to the present case because there is a conflict
between the preferential guardian in Mohammedan Law and
the Act. It was pointed out that while deciding the custody of
the minor children, the welfare of the children had to be taken
into consideration and that it was guaranteed by the Act. They
have placed their reliance on the case of Rafiq v. Bashiran
and ors, [AIR 1963 Rajasthan 239]. The Rajasthan High Court
in the cited case held that where the provisions of the personal
law are in conflict with the provisions of the Guardians and
Wards Act the latter shall prevail over the former.
29. Relying on the case of B.N.Ganguly v. C.H.Sarkar, [AIR
1961 MP 173] it was contended by the learned counsel for the
16
appellant that there is a presumption that parents will be able
to exercise good care in the welfare of their children.
30. It was argued by the learned counsel on behalf of
respondents that the impugned order warrants no
interference. Before passing the impugned order, the learned
Judge had spent over one hour with the children to ascertain
their preferences. The children have been living with the
respondents since their mother's death in June, 2006 as the
High Court had stayed the order of the Family Court vacating
the injunction order. While the respondents had been
complying with the visitation rights granted to the appellant,
the children were not happy with the treatment meted out to
them during the time they spent with their father and
stepmother. In contrast, respondent no. 3, contrary to the
apprehensions expressed by the appellant has stated on
record that she had no intention to marry and would devote
her life towards the welfare of the children. Respondents
further asserted that the cases of Rafiq v. Bashir (supra) and
B.N. Ganguly (supra) are not applicable to the facts of this
case.
17
31. We have heard the learned counsel for both the parties
and examined the impugned order of the High Court and also
the orders passed by the Family Court. After considering the
materials on record and the impugned order, we are of the
view that at this stage the respondents should be given interim
custody of the minor children till the disposal of the
proceedings filed under Sections 7, 9 and 17 of the Act.
Reasons are as follows:
32. Section 12 of the Act empowers courts to "make such
order for the temporary custody and protection of the person
or property of the minor as it thinks proper." In matters of
custody, as well settled by judicial precedents, welfare of the
children is the sole and single yardstick by which the Court
shall assess the comparative merit of the parties contesting for
custody. Therefore, while deciding the question of interim
custody, we must be guided by the welfare of the children
since Section 12 empowers the Court to make any order as it
deems proper.
33. We are mindful of the fact that, as far as the matter of
guardianship is concerned, the prima facie case lies in favour
18
of the father as under Section 19 of the GWC Act, unless the
father is not fit to be a guardian, the Court has no jurisdiction
to appoint another guardian. It is also true that the
respondents, despite the voluminous allegations leveled
against the appellant have not been able to prove that he is
not fit to take care of the minor children, nor has the Family
Court or the High Court found him so. However, the question
of custody is different from the question of guardianship.
Father can continue to be the natural guardian of the
children; however, the considerations pertaining to the welfare
of the child may indicate lawful custody with another friend or
relative as serving his/her interest better. In the case of Rosy
Jacob v. Jacob A. Chakramakkal, [(1973) 3 S.C.R. 918],
keeping in mind the distinction between right to be appointed
as a Guardian and the right to claim custody of the minor
child, this Court held so in the following oft-quoted words:
"Merely because the father loves his children and is
not shown to be otherwise undesirable cannot
necessarily lead to the conclusion that the welfare of
the children would be better promoted by granting
their custody to him as against the wife who may
also be equally affectionate towards her children and
otherwise equally free from blemish, and, who, in
19
addition, because of her profession and financial
resources, may be in a position to guarantee better
health, education and maintenance for them."
34. In the case of Mt. Siddiqunnisa Bibi v. Nizamuddin
Khan and Ors., [AIR 1932 All 215], which was a case
concerning the right to custody under Mohammaden Law, the
Court held:
"A question has been raised before us whether the
right under the Mahomedan law of the female
relation of a minor girl under the age of puberty to
the custody of the person of the girl is identical with
the guardianship of the person of the minor or
whether it is something different and distinct. The
right to the custody of such a minor vested in her
female relations, is absolute and is subject to several
conditions including the absence of residing at a
distance from the father's place of residence and
want of taking proper care of the child. It is also clear
that the supervision of the child by the father
continues in spite of the fact that she is under the
care of her female relation, as the burden of
providing maintenance for the child rests exclusively
on the father."
35. Thus the question of guardianship can be independent of
and distinct from that of custody in facts and circumstances of
each case.
20
36. Keeping in mind the paramount consideration of welfare
of the children, we are not inclined to disturb their custody
which currently rests with their maternal relatives as the
scope of this order is limited to determining with which of the
contesting parties the minors should stay till the disposal of
the application for guardianship.
37. The appellant placed reliance on the case of R.V.
Srinath Prasad v. Nandamuri Jayakrishna [AIR 2001 SC
1056]. This Court had observed in this decision that custody
orders by their nature can never be final; however, before a
change is made it must be proved to be in the paramount
interest of the children. In that decision, while granting interim
custody to the father as against the maternal grandparents,
this Court held:
"The Division Bench appears to have lost sight of
the factual position that the time of death of their
mother the children were left in custody of their
paternal grand parents with whom their father is
staying and the attempt of the respondent no.1 was
to alter that position before the application filed by
them is considered by the Family Court. For this
purpose it was very relevant to consider whether
leaving the minor children in custody of their father
till the Family Court decides the matter would be so
detrimental to the interest of the minors that their
21
custody should be changed forthwith. The
observations that the father is facing a criminal
case, that he mostly resides in USA and that it is
alleged that he is having an affair with another
lady are, in our view, not sufficient to come to the
conclusion that custody of the minors should be
changed immediately."
What is important for us to note from these observations
is that the Court shall determine whether, in proceedings
relating to interim custody, there are sufficient and compelling
reasons to persuade the Court to change the custody of the
minor children with immediate effect.
38. Stability and consistency in the affairs and routines of
children is also an important consideration as was held by this
Court in another decision cited by the learned counsel for the
appellant in the case of Mausami Moitra Ganguli v. Jayant
Ganguli, [AIR 2008 SC 2262]. This Court held:
"We are convinced that the dislocation of
Satyajeet, at this stage, from Allahabad, where he
has grown up in sufficiently good surroundings,
would not only impede his schooling, it may also
cause emotional strain and depression on him."
39. After taking note of the marked reluctance on part of the
boy to live with his mother, the Court further observed:
22
"Under these circumstances and bearing in mind
the paramount consideration of the welfare of the
child, we are convinced that child's interest and
welfare will be best served if he continues to be in
the custody of the father. In our opinion, for the
present, it is not desirable to disturb the custody of
Master Satyajeet and, therefore, the order of the
High Court giving his exclusive custody to the father
with visitation rights to the mother deserves to be
maintained."
40. The children have been in the lawful custody of the
respondents from October, 2007. In the case of Gaurav Nagpal
v. Sumedha Nagpal, [(2009) 1 SCC 42], it was argued before
this Court by the father of the minor child that the child had
been in his custody for a long time and that a sudden change
in custody would traumatize the child. This Court did not find
favour with this argument. This Court observed that the father
of the minor child who retained the custody of the child with
him by flouting Court orders, even leading to institution of
contempt proceedings against him, could not be allowed to
take advantage of his own wrong. The case before us stands
on a different footing. The custody of the minor children with
the respondents is lawful and has the sanction of the order of
the High Court granting interim custody of the children in
23
their favour. Hence, the consideration that the custody of the
children should not undergo an immediate change prevails.
The question with whom they remained during the period from
the death of their mother till the institution of present
proceedings is a matter of dispute between the parties and we
are not in a position to reach a conclusion on the same
without going into the merits of the matter. At any rate, the
children are happy and are presumably taken care of with love
and affection by the respondents, judging from the reluctance
on part of the girl child to go with her father. She might attain
puberty at any time. As the High Court has rightly observed, it
may not be in the interests of the children to separate them
from each other. Hence, at this juncture, we are not inclined
to disturb the status quo, as we are only concerned with the
question of interim custody at this stage.
41. The learned counsel for the appellant has placed reliance
on the case of Rafiq v. Smt. Bashiran and Another [supra].
In this case, the High Court had set aside the order of the Civil
Judge granting the custody of the child to her mother's
paternal aunt, while the father was not proven to be unfit.
24
Quoting from Tyabji's Mahomedan Law, Third Edition, Section
236 (p. 275) the Court observed:
"The following persons have a preferential right over the
father to the custody of (sic)minor girl before she attains
the age of puberty.
1. Mother's mother
2. Father's mother
3. Mother's grandmother howsoever high
4. Father's grandmother howsoever high
5. Full sister
6. Uterine sister
7. Daughter of full sister, howsoever low.
8. Dauther of uterine sister, howsoever low.
9. Full maternal aunt, howsoever high.
10.Uterine maternal aunt, howsoever high.
11.Full paternal aunt, howsoever high.
42. However, the High Court of Rajasthan held that in the
light of Section 19 which bars the Court from appointing a
guardian when the father of the minor is alive and not unfit,
25
the Court could not appoint any maternal relative as a
guardian, even though the personal law of the minor might
give preferential custody in her favour.
43. As is evident, the aforementioned decision concerned
appointment of a guardian. No doubt, unless the father is
proven to be unfit, the application for guardianship filed by
another person cannot be entertained. However, we have
already seen that the question of custody was distinct from
that of guardianship. As far as matters of custody are
concerned, the Court is not bound by the bar envisaged under
Section 19 of the Act. In our opinion, as far as the question of
custody is concerned, in the light of the aforementioned
decisions, the personal law governing the minor girl dictates
her maternal relatives, especially her maternal aunt, shall be
given preference. To the extent that we are concerned with the
question of interim custody, we see no reason to override this
rule of Mohammedan Law and, hence, a prima facie case is
found in favour of the respondents.
44. Further, the balance of convenience lies in favour of
granting custody to the maternal grandfather, aunt and uncle.
26
A plethora of decisions of this Court endorse the proposition
that in matters of custody of children, their welfare shall be
the focal point. Once we shift the focus from the rights of the
contesting relatives to the welfare of the minor children, the
considerations in determining the question of balance of
convenience also differ. We take note of the fact that
respondent no.3, on record, has stated that she has no
intention to get married and her plea that she had resigned
from her job as a technical writer to take care of the children
remains uncontroverted. We are, hence, convinced that the
respondents will be in a position to provide sufficient love and
care for the children until the disposal of the guardianship
application. The second marriage of the appellant, though a
factor that cannot disentitle him to the custody of the
children, yet is an important factor to be taken into account. It
may not be appropriate on our part to place the children in a
predicament where they have to adjust with their step-mother,
with whom admittedly they had not spent much time as the
marriage took place only in March, 2007, when the ultimate
outcome of the guardianship proceedings is still uncertain.
27
The learned counsel for the appellant placed reliance on the
case of Bal Krishna Pandey v. Sanjeev Bajpayee [AIR 2004
UTR 1] wherein the maternal grandfather of the minor
contested with the father of the minor for custody of a girl
aged about 12 years. The Uttranchal High court in that case
gave the custody of minor to the father rejecting the
contention of grandfather (appellant) that the father
(respondent) after his remarriage will not be in a position to
give fair treatment to the minor. However, in that case, the
second wife of the father had been medically proven as unable
to conceive. Hence, the question of a possible conflict between
her affection for the children whose custody was in dispute
and the children she might bear from the father did not arise.
In the case before us, the situation is not the same and the
possibility of such conflict does have a bearing upon the
welfare of the children.
45. As this is a matter of interim custody till the final
disposal of the application GWC No. 64 of 2007, we are of the
opinion that the interests of the children will be duly served if
their current residence is not disturbed and a sudden
28
separation from their maternal relatives does not come on
their way. Irreparable injury will be caused to the children if
they, against their will, are uprooted from their present
settings.
46. The learned counsel for the appellant placed strong
reliance in the case of Hassan Bhatt v. Ghulam Mohamad
Bhat [AIR 1961 J & K 5] which held that the words "subject
to the provisions of this section" in sub-section 1 of Section 17
of the Act clearly indicates that the consideration of the
welfare of the minor should be the paramount factor and
cannot be subordinated to the personal law of the minor. The
view expressed by the High Court is clearly correct. As far as
the question of interim custody is concerned, we are of the
view that there is no conflict between the welfare of the
children and the course of action suggested by the personal
law to which they are subject.
47. At this juncture, we may mention the following factors to
which the learned counsel for the appellant invites our
attention. In the present case, respondent no. 1 is an old
person aged about 72 years and respondent no. 2 is already
29
married, living with his wife and children. Respondent no. 3
and 4 are unmarried and are of marriageable age. Respondent
no. 3, the maternal aunt of the children, will go to live with her
husband after marriage. Respondent No. 4 after his marriage
may or may not live with his father. There is nothing on
record to show that the appellant mistreated the deceased
mother of minor children. We cannot express our views on the
correctness of these averments. These are the matters that
must be gone into when the Family Court disposes of the
application for guardianship filed by the Respondents, and not
at this stage.
48. According to the appellant, from the fact that the
respondents raised the issue of death of his wife 10 months
after her death and one month after he refused the marriage
offer of Respondent No. 3, it must be inferred that the
respondents have raised this issue merely to obtain the
custody of children and that the respondents did not come to
court with clean hands. As far as the question of denying the
respondents the interim custody of children on the ground
30
that they had not approached the Court with clean hands, we
are constrained to say that we are not in a position to
conclusively infer the same. The alleged refusal on part of the
appellant to marry respondent no.3 which is said to have led
the respondents to file the application for guardianship, is
again question of fact which is yet to be proved. In Nil Ratan
Kundu and Anr. Vs. Abhijit Kundu, [(2008) 9 SCC 413] this
Court had enumerated certain principles while determining
the custody of a minor child. This Court under Paragraph 56
observed:
"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. Thus the strict parameters governing an
interim injunction do not have full play in matters of
custody."
49. The learned counsel for the appellant again relied on a
decision of B.N.Ganguly (supra) in which case the High Court
of Madhya Pradesh had held that there is a presumption in
law that parents will be able to exercise good care in the
welfare of their children if they do not happen to be unsuitable
31
as guardians. The facts of that case are quite different from
the one at hand. The contesting guardians in that case where
contesting on the basis of an alleged adoption, against the
parents of the child. Both the parents had joined in making
the application and nothing had been said against their habits
or way of living. The case stands altogether on a different
footing.
50. The High court had relied heavily on the preference made
by Athiya Ali who then was 10 to 11 years old. In the opinion
of High Court, she was capable of making intelligent
preference. It may be true that 11 years is a tender age and
her preference cannot be conclusive. The contention of the
appellant in this respect is also supported by the decision in
Bal Krishna Pandey's case (supra). But as we are not
dealing with the question of guardianship, but only with the
issue of interim custody, we see no reason why the preference
of the elder child shall be overlooked. It may be noted that the
Family Court had considered fact that the younger child had
instinctively approached his father while he met him in the
32
Court premises while vacating the interim order of injunction.
The second child who is just 4 years old cannot form an
intelligent opinion as to who would be the right person to look
after him and, hence, we must give weight to the preference
that Athiya had expressed.
51. We find it fit, however, to modify the visitation rights
granted to the appellant. He shall be allowed to visit the
children on Saturdays as well between 9 am and 5 pm.
52. The order of the High court is modified to the extent
indicated above, and the order of the Family Court dated 11th
of June, 2007 vacating its injunction order is set aside. The
Family Court is hereby directed to dispose of the case relating
to the guardianship of the two children after adducing
evidence by both the parties (both oral and documentary) at
an early date, preferably within six months from the date of
supply of a copy of this order to it.
53. We, however, make it clear that the observations made in
the order of the High Court as well as by this Court, if there be
33
any, shall not be taken to be final while deciding the original
application filed under Sections 7, 9 and 17 of the Act and the
Family Court shall be at liberty to proceed with the disposal of
the said proceeding independently of any of the observations
made by this Court in this judgment.
54. The appeal is thus dismissed. There will be no order as to
costs.
55. In view of the above judgment, the application for
impleadment becomes infructuous and is dismissed as such.
.............................J.
[Tarun Chatterjee]
New Delhi; ............................J.
January 05, 2010. [V.S.Sirpurkar]
34
35
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11 OF 2010
(Arising out of SLP ) No. 24148 of 2007)
Athar Hussain. -----Appellant
Versus
Syed Siraj Ahmed & Ors. ----Respondents
JUDGMENT
TARUN CHATTERJEE, J.
1. Leave granted.
2. This appeal is directed against the judgment and order
dated 8th of October, 2007 passed by the High Court of
Karnataka at Bangalore by which the High Court had set aside
the order dated 11th of June, 2007 of the Family Court,
Bangalore vacating its order of injunction dated 21st of April,
2007 passed against the appellant in G.W.C. No. 64 of 2007
preventing him from interfering with the custody of his
children with the respondents.
3. The appellant is the father of the minor children in whose
respect interim custody and guardianship have been sought
1
for. The respondent No.1 is the maternal grandfather of the
two minor children of the appellant and respondent Nos. 2, 3
and 4 are their maternal aunt and uncles.
4. The appellant married one Umme Asma, daughter of
respondent No. 1, in accordance with Islamic rites and
customs on 31st of March, 1993. Two children were born out of
the wedlock, Athiya Ali, aged about 13 years and Aayan Ali ,
aged about 5 years. Their mother Umme Asma died on 16th of
June, 2006. Subsequent to the death of Umme Asma, the
mother of two minor children, the appellant again married to
one Jawahar Sultana on 25th of March, 2007 who in the
pending proceeding had filed an application before the Family
Court for her impleadment in the same.
5. A proceeding was initiated on 21st of April, 2007 at the
instance of the respondents under Sections 7, 9 and 17 of the
Guardian and Wards Act, 1890 (hereinafter referred to as `the
Act') in the Court of the Principal Family Judge, Bangalore
which came to be registered as G.W.C.No.64 of 2007. In the
aforesaid pending proceeding under the Act, an application
was filed under Section 12 of the Act read with Order 39 Rule
2
1 and 2 of the Code of Civil Procedure (in short `the Code') in
which interim protection was prayed for of the persons and
properties of the minor children and also for an order of
injunction restraining the appellant from interfering or
disturbing the custody of two children till the disposal of the
application filed under Sections 7, 9 and 17 of the Act. The
case that was made out by the respondents in the affidavit
accompanying their application for injunction filed under
Section 12 of the Act read with Order 39 Rule 1 and 2 of the
Code was a follows :-
6. On the same day on which the respondents filed the
applications for being appointed as guardians and for interim
injunction against the appellant, i.e. on 21st of April, 2007, the
Family Court disposed of the application under section 12
read with Order 39 Rule 1 and 2 of the CPC, and passed an ex
parte interim order restraining the appellant from interfering
with the custody of the two children of the appellant.
7. Feeling aggrieved, the appellant filed an application
against the order of the family court under Order 39 Rule 4 of
the Code praying for vacation of interim order of injunction
3
passed against him. In the Counter Affidavit accompanying
the application filed on 28th of April, 2007 to vacate the interim
order of injunction, he denied all averments made in the
application filed by the respondents as incorrect and
fabricated. It is not in dispute that the appellant is the father
and natural guardian of the children. While respondent no.1 is
aged about 72 years and is retired and hence is in no position
to look after his children, respondent no.2 is living separately
after his marriage; respondent nos. 3 and 4 are nearing the
age of marriage and would go ahead with their own lives once
married. Further respondent no.1 has another son whose wife
divorced him on account of harassment for dowry and another
daughter who was mentally retarded. These heavy
responsibilities which already lie on the respondent make him
unfit as a guardian of his children. The only motive of the
respondents is to gain the property that the appellant had
purchased in favour of Umme Asme.
8. Pursuant to a telephonic request made by respondent
no.3, he dropped his children at their place on 21st of April,
2007. When he went back to collect them on 22nd of April,
4
2007, he was informed that they would be back only at night.
On 23rd of April, 2007, he was told that the children had gone
to Ooty and would return after a few days. Since the appellant
had reasons to suspect the bonafide of the respondents, he
lodged a complaint before the Inspector of Police, J.C. Nagar,
Bangalore on 23rd of April, 2007. The respondents who were
summoned to the police station gave an undertaking to the
effect that the children would be back on 24th of April, 2007. It
is alleged that though the respondents had procured the
interim order of injunction on 21st of April, 2007 itself, they did
not inform either the appellant or the Police authorities until
25th of April, 2007 on which day they produced the copy of the
interim order to the appellant.
9. Appellant further alleged that his daughter had been
missing classes as she was unduly retained by the
respondents, who had no concern whatsoever with respect to
the same.
10. The death certificate clearly showed leukemia as the sole
cause of death of Umme Asma, contrary to the allegations of
the respondents. He had deeply loved his wife and as a token
5
of his love, had purchased a property in her name on which he
constructed house entirely in accordance with her wishes.
Contrary to what the respondents had alleged, all the
expenses for the treatment of his wife and the education of the
children were borne by the appellant. His relationship with his
deceased wife and the children were indeed cordial. In order to
secure education of high quality for his daughter, he got her
admitted into a good school and had borne all related
expenses, as proved from the receipts issued by the school
authorities. He had also obtained an insurance policy in the
name of his daughter.
11. It is for the vengeance of the appellant's refusal to marry
respondent no.3 who wished to marry him after the death of
her sister, that they had filed the application claiming custody
and guardianship of the children. The photographs produced
before the Court were taken when the appellant himself took
the respondents on an excursion along with his family in his
own car. The mark sheets produced by the respondents bore
forged signatures of the appellant whereas the documents
bearing his own signature were not produced.
6
12. In short, the appellant submitted that in view of
suppression and concealment of material facts on part of the
respondents, they were not entitled to the equitable relief of
injunction. Moreover, he had a prima facie case and the
balance of convenience stood in his favour. Irreparable injury
would be caused to him as the father of the minor children
who would not be safe in the hands of the respondents.
13. The family court by its order dated 11th of June, 2007
vacated the interim order of injunction granted on 21st of April
2007. The Court found that the respondents had neither
prima facie case nor balance of convenience in their favour,
nor vacating the ex parte interim order would cause
irreparable injury to them. It was also the finding of the family
court that the respondents did not approach the Court with
clean hands. The Court found that in support of their
contention that Umme Asma died due to the assault cast upon
by the appellant, the respondents had not been able to
produce any material evidence; nor was any case filed against
the appellant. This appears in contrast to their contention that
after the death of Umme Asma, her relatives had enquired
7
about the marks on her face which occurred when the
appellant had hit her. If this was the case, the respondents
would have initiated an enquiry much before, not when almost
ten months had expired after the death of Umme Asma. This
prolonged silence, according to the trial court, renders the
version of the appellant probable that it is to wreck vengeance
towards him who refused to marry the respondent no.3 that
the entire proceedings had been launched. The death report
produced by the appellant, on the other hand, supports the
version of the appellant of bone cancer being the cause of his
wife's death. The fact that he bore with all medical expenses is
also supported by evidence. The appellant has also been able
to produce the sale deed of the property which he claims to
have purchased in his wife's name out of his love and affection
for her.
14. The undertaking given by the respondents before Police
Authorities with respect to the complaint filed against them by
the appellant also strengthens the version of the appellant that
as a matter of course, the children stayed with the appellant
and that it was the respondents who took them away without
8
his sanction. It is pertinent to note that the respondents did
not produce the temporary order of injunction at the time they
were asked to file the said undertaking to the Police
Authorities. The various receipts produced by the appellant as
evincing the expenses he incurred for his wife and children
were also considered. Thus it was found that the respondents
had no prima facie case.
15. The Family Court found the balance of convenience also
leaning in favour of the appellant, who is admittedly the
natural guardian of the children. The photographs produced
by both the parties were considered as indicating the bond the
children shared with both. It was found that they were also
happy in the company of their step mother. Though Athiya
had stated that she was not willing to go with her father, the
Family Court felt that it could be no consequence as she was
not old enough to form a mature opinion and was susceptible
to tutoring. The fact that the son went to the appellant when
he saw him in the Court premises indicated that the children
were close to the appellant. Accordingly, balance of
convenience was found tilting in favour of the appellant.
9
16. Irreparable injury will be caused to the father if he is
denied interim custody as he is the natural guardian of the
children, the care and concern for whom he had established in
various ways. Keeping in view the fact that welfare of the
children is the paramount consideration, it was noted that the
respondent nos. 2 and 3 would get married and start living
separately while respondent no.1 is an aged person. Therefore,
the appellant was more competent and fit than all to take care
of the children. In order not to deprive the children of the love
and affection of their maternal relatives, the appellant had
agreed to leave the children at the respondents' place on every
alternate Saturday and for five days at the beginning of the
summer vacation which shows his magnanimity and
generosity.
17. The contentions of the respondents were not supported
by documentary evidence and, therefore, the Family Court was
of the opinion that they had not approached the Court with
clean hands. Hence, the equitable remedy of injunction could
not be granted to them.
10
18. Therefore, by its order dated 11th of June, 2007, the
Family Court vacated the ad-interim order of temporary
injunction restraining the appellant from interfering with the
custody of the children with the respondents.
19. Aggrieved by this order, the respondents filed a Writ
Petition which came to be numbered as W.P. No. 9177 of 2007
before the High Court of Karnataka at Bangalore. Before the
High Court, the respondents contended that the parties would
be governed by Mohammaden Law which dictates that in the
absence of the mother, maternal grand parents shall be the
guardian of minor children. It was further contended that the
second marriage of the appellant disentitles him to the
custody of children. Further, when the children are capable of
forming their opinion, they should be allowed to exercise their
option with respect to which of the parties they would go with.
The well being of the children which is the paramount
consideration in matters of custody was not taken into
account by the Family Court whose order is liable to be set
aside on this count alone.
11
20. The appellant, in response to these submissions,
contended that the High Court could not interfere with the
findings of the Family Court unless serious infirmity is proven.
The decisions cited by the respondents were distinguished on
the ground that these decisions concerned findings that were
recorded after a full fledged trial and not an order passed as
an ad-interim relief granting custody to one of the parties.
21. On consideration of these arguments, the High Court by
its order dated 8th of October 2007 had set aside the order of
the Family Court by which it had vacated the interim order of
injunction and passed the following directions:
a. The impugned order is quashed.
b. The respondent father will have visiting rights and
shall visit his two children on every Sunday between
9 a.m. and 5 p.m. The father is permitted to take
out the children to any place of his and children's
choice and shall bring back the children to
petitioner's house. This arrangement shall continue
pending disposal of the proceedings before the
learned Family Judge.
12
c. Having regard to the sensitive issue involved i.e. as
to the guardianship of the minor children, the
learned Family Judge is directed to conclude the
proceedings within six months from the date of
receipt of the copy of this order.
d. Any observation made during the course of this
order is only for the purpose of considering as to
where the children should stay during the pendency
of the proceedings. It shall not be treated as a
finding on the merits of the case. The learned
Family Judge shall not be swayed by any of the
observations made during the course of this order.
22. The High Court in its impugned judgment had held that
while appointing the guardian or deciding the matter of
custody of the minor children during the pendency of
guardianship proceedings, the first and foremost consideration
for the Court is the welfare of the children. The factors that
must be kept in mind while determining the question of
guardianship will apply with equal force to the question of
interim custody. It was observed that the Family Court should
13
have delved a little deeper into the matter and ascertained
where the interest of the children lay, instead of recording
abstract findings on questions of prima facie case, balance of
convenience and irreparable injury.
23. The terms on which the appellant and his deceased wife
were, the manner in which the respondents obtained the
custody of the children are questions that should be
determined during the course of trial.
24. Though when the children's father is not unfit otherwise
he shall be the natural guardian, a child cannot be forced to
stay with his/her father. According to the High Court, merely
because the father has love and affection for his children and
is not otherwise shown unfit to take care of the children, it
cannot be necessarily concluded that welfare of the children
will be taken care of once their custody is given to him. The
girl had expressed a marked reluctance to stay with her father.
The High Court was of the opinion that the children had
developed long standing affection towards their maternal
grandfather, aunt and uncles. It will take a while before they
develop the same towards their step mother. The sex of the
14
minor girl who would soon face the difficulties of attaining
adolescence is an important consideration, though not a
conclusive one. She will benefit from the guidance of her
maternal aunt, if custody is given to the respondents, which
the appellant will be in no position to provide. Further, there is
a special bonding between the children and it is desirable that
they stay together with their maternal grandfather, uncles and
aunt.
25. In case of custody of the minor children, the Family Law,
i.e. the Mohammedan Law would apply in place of the Act.
Considering the provisions under Section 353 of the
Mohammedan Law, the High Court had held that the
preferential rights regarding the custody of the minor children
rests with the maternal grandparents. After making a doubtful
proposition that in case of a conflict between personal law and
welfare of the children the former shall prevail, the High Court
held that in the case at hand there is no such conflict.
26. For the reasons aforementioned, the High Court by its
impugned order set aside the order of the Family Court,
15
Bangalore which vacated the interim order of injunction
issued against the appellant.
27. It is this order of the High Court, which is challenged
before us by way of special leave petition which on grant of
leave has been heard by us in the presence of the learned
counsel appearing on behalf of the parties.
28. It was the contention of the appellant before us that the
Act will apply to the present case because there is a conflict
between the preferential guardian in Mohammedan Law and
the Act. It was pointed out that while deciding the custody of
the minor children, the welfare of the children had to be taken
into consideration and that it was guaranteed by the Act. They
have placed their reliance on the case of Rafiq v. Bashiran
and ors, [AIR 1963 Rajasthan 239]. The Rajasthan High Court
in the cited case held that where the provisions of the personal
law are in conflict with the provisions of the Guardians and
Wards Act the latter shall prevail over the former.
29. Relying on the case of B.N.Ganguly v. C.H.Sarkar, [AIR
1961 MP 173] it was contended by the learned counsel for the
16
appellant that there is a presumption that parents will be able
to exercise good care in the welfare of their children.
30. It was argued by the learned counsel on behalf of
respondents that the impugned order warrants no
interference. Before passing the impugned order, the learned
Judge had spent over one hour with the children to ascertain
their preferences. The children have been living with the
respondents since their mother's death in June, 2006 as the
High Court had stayed the order of the Family Court vacating
the injunction order. While the respondents had been
complying with the visitation rights granted to the appellant,
the children were not happy with the treatment meted out to
them during the time they spent with their father and
stepmother. In contrast, respondent no. 3, contrary to the
apprehensions expressed by the appellant has stated on
record that she had no intention to marry and would devote
her life towards the welfare of the children. Respondents
further asserted that the cases of Rafiq v. Bashir (supra) and
B.N. Ganguly (supra) are not applicable to the facts of this
case.
17
31. We have heard the learned counsel for both the parties
and examined the impugned order of the High Court and also
the orders passed by the Family Court. After considering the
materials on record and the impugned order, we are of the
view that at this stage the respondents should be given interim
custody of the minor children till the disposal of the
proceedings filed under Sections 7, 9 and 17 of the Act.
Reasons are as follows:
32. Section 12 of the Act empowers courts to "make such
order for the temporary custody and protection of the person
or property of the minor as it thinks proper." In matters of
custody, as well settled by judicial precedents, welfare of the
children is the sole and single yardstick by which the Court
shall assess the comparative merit of the parties contesting for
custody. Therefore, while deciding the question of interim
custody, we must be guided by the welfare of the children
since Section 12 empowers the Court to make any order as it
deems proper.
33. We are mindful of the fact that, as far as the matter of
guardianship is concerned, the prima facie case lies in favour
18
of the father as under Section 19 of the GWC Act, unless the
father is not fit to be a guardian, the Court has no jurisdiction
to appoint another guardian. It is also true that the
respondents, despite the voluminous allegations leveled
against the appellant have not been able to prove that he is
not fit to take care of the minor children, nor has the Family
Court or the High Court found him so. However, the question
of custody is different from the question of guardianship.
Father can continue to be the natural guardian of the
children; however, the considerations pertaining to the welfare
of the child may indicate lawful custody with another friend or
relative as serving his/her interest better. In the case of Rosy
Jacob v. Jacob A. Chakramakkal, [(1973) 3 S.C.R. 918],
keeping in mind the distinction between right to be appointed
as a Guardian and the right to claim custody of the minor
child, this Court held so in the following oft-quoted words:
"Merely because the father loves his children and is
not shown to be otherwise undesirable cannot
necessarily lead to the conclusion that the welfare of
the children would be better promoted by granting
their custody to him as against the wife who may
also be equally affectionate towards her children and
otherwise equally free from blemish, and, who, in
19
addition, because of her profession and financial
resources, may be in a position to guarantee better
health, education and maintenance for them."
34. In the case of Mt. Siddiqunnisa Bibi v. Nizamuddin
Khan and Ors., [AIR 1932 All 215], which was a case
concerning the right to custody under Mohammaden Law, the
Court held:
"A question has been raised before us whether the
right under the Mahomedan law of the female
relation of a minor girl under the age of puberty to
the custody of the person of the girl is identical with
the guardianship of the person of the minor or
whether it is something different and distinct. The
right to the custody of such a minor vested in her
female relations, is absolute and is subject to several
conditions including the absence of residing at a
distance from the father's place of residence and
want of taking proper care of the child. It is also clear
that the supervision of the child by the father
continues in spite of the fact that she is under the
care of her female relation, as the burden of
providing maintenance for the child rests exclusively
on the father."
35. Thus the question of guardianship can be independent of
and distinct from that of custody in facts and circumstances of
each case.
20
36. Keeping in mind the paramount consideration of welfare
of the children, we are not inclined to disturb their custody
which currently rests with their maternal relatives as the
scope of this order is limited to determining with which of the
contesting parties the minors should stay till the disposal of
the application for guardianship.
37. The appellant placed reliance on the case of R.V.
Srinath Prasad v. Nandamuri Jayakrishna [AIR 2001 SC
1056]. This Court had observed in this decision that custody
orders by their nature can never be final; however, before a
change is made it must be proved to be in the paramount
interest of the children. In that decision, while granting interim
custody to the father as against the maternal grandparents,
this Court held:
"The Division Bench appears to have lost sight of
the factual position that the time of death of their
mother the children were left in custody of their
paternal grand parents with whom their father is
staying and the attempt of the respondent no.1 was
to alter that position before the application filed by
them is considered by the Family Court. For this
purpose it was very relevant to consider whether
leaving the minor children in custody of their father
till the Family Court decides the matter would be so
detrimental to the interest of the minors that their
21
custody should be changed forthwith. The
observations that the father is facing a criminal
case, that he mostly resides in USA and that it is
alleged that he is having an affair with another
lady are, in our view, not sufficient to come to the
conclusion that custody of the minors should be
changed immediately."
What is important for us to note from these observations
is that the Court shall determine whether, in proceedings
relating to interim custody, there are sufficient and compelling
reasons to persuade the Court to change the custody of the
minor children with immediate effect.
38. Stability and consistency in the affairs and routines of
children is also an important consideration as was held by this
Court in another decision cited by the learned counsel for the
appellant in the case of Mausami Moitra Ganguli v. Jayant
Ganguli, [AIR 2008 SC 2262]. This Court held:
"We are convinced that the dislocation of
Satyajeet, at this stage, from Allahabad, where he
has grown up in sufficiently good surroundings,
would not only impede his schooling, it may also
cause emotional strain and depression on him."
39. After taking note of the marked reluctance on part of the
boy to live with his mother, the Court further observed:
22
"Under these circumstances and bearing in mind
the paramount consideration of the welfare of the
child, we are convinced that child's interest and
welfare will be best served if he continues to be in
the custody of the father. In our opinion, for the
present, it is not desirable to disturb the custody of
Master Satyajeet and, therefore, the order of the
High Court giving his exclusive custody to the father
with visitation rights to the mother deserves to be
maintained."
40. The children have been in the lawful custody of the
respondents from October, 2007. In the case of Gaurav Nagpal
v. Sumedha Nagpal, [(2009) 1 SCC 42], it was argued before
this Court by the father of the minor child that the child had
been in his custody for a long time and that a sudden change
in custody would traumatize the child. This Court did not find
favour with this argument. This Court observed that the father
of the minor child who retained the custody of the child with
him by flouting Court orders, even leading to institution of
contempt proceedings against him, could not be allowed to
take advantage of his own wrong. The case before us stands
on a different footing. The custody of the minor children with
the respondents is lawful and has the sanction of the order of
the High Court granting interim custody of the children in
23
their favour. Hence, the consideration that the custody of the
children should not undergo an immediate change prevails.
The question with whom they remained during the period from
the death of their mother till the institution of present
proceedings is a matter of dispute between the parties and we
are not in a position to reach a conclusion on the same
without going into the merits of the matter. At any rate, the
children are happy and are presumably taken care of with love
and affection by the respondents, judging from the reluctance
on part of the girl child to go with her father. She might attain
puberty at any time. As the High Court has rightly observed, it
may not be in the interests of the children to separate them
from each other. Hence, at this juncture, we are not inclined
to disturb the status quo, as we are only concerned with the
question of interim custody at this stage.
41. The learned counsel for the appellant has placed reliance
on the case of Rafiq v. Smt. Bashiran and Another [supra].
In this case, the High Court had set aside the order of the Civil
Judge granting the custody of the child to her mother's
paternal aunt, while the father was not proven to be unfit.
24
Quoting from Tyabji's Mahomedan Law, Third Edition, Section
236 (p. 275) the Court observed:
"The following persons have a preferential right over the
father to the custody of (sic)minor girl before she attains
the age of puberty.
1. Mother's mother
2. Father's mother
3. Mother's grandmother howsoever high
4. Father's grandmother howsoever high
5. Full sister
6. Uterine sister
7. Daughter of full sister, howsoever low.
8. Dauther of uterine sister, howsoever low.
9. Full maternal aunt, howsoever high.
10.Uterine maternal aunt, howsoever high.
11.Full paternal aunt, howsoever high.
42. However, the High Court of Rajasthan held that in the
light of Section 19 which bars the Court from appointing a
guardian when the father of the minor is alive and not unfit,
25
the Court could not appoint any maternal relative as a
guardian, even though the personal law of the minor might
give preferential custody in her favour.
43. As is evident, the aforementioned decision concerned
appointment of a guardian. No doubt, unless the father is
proven to be unfit, the application for guardianship filed by
another person cannot be entertained. However, we have
already seen that the question of custody was distinct from
that of guardianship. As far as matters of custody are
concerned, the Court is not bound by the bar envisaged under
Section 19 of the Act. In our opinion, as far as the question of
custody is concerned, in the light of the aforementioned
decisions, the personal law governing the minor girl dictates
her maternal relatives, especially her maternal aunt, shall be
given preference. To the extent that we are concerned with the
question of interim custody, we see no reason to override this
rule of Mohammedan Law and, hence, a prima facie case is
found in favour of the respondents.
44. Further, the balance of convenience lies in favour of
granting custody to the maternal grandfather, aunt and uncle.
26
A plethora of decisions of this Court endorse the proposition
that in matters of custody of children, their welfare shall be
the focal point. Once we shift the focus from the rights of the
contesting relatives to the welfare of the minor children, the
considerations in determining the question of balance of
convenience also differ. We take note of the fact that
respondent no.3, on record, has stated that she has no
intention to get married and her plea that she had resigned
from her job as a technical writer to take care of the children
remains uncontroverted. We are, hence, convinced that the
respondents will be in a position to provide sufficient love and
care for the children until the disposal of the guardianship
application. The second marriage of the appellant, though a
factor that cannot disentitle him to the custody of the
children, yet is an important factor to be taken into account. It
may not be appropriate on our part to place the children in a
predicament where they have to adjust with their step-mother,
with whom admittedly they had not spent much time as the
marriage took place only in March, 2007, when the ultimate
outcome of the guardianship proceedings is still uncertain.
27
The learned counsel for the appellant placed reliance on the
case of Bal Krishna Pandey v. Sanjeev Bajpayee [AIR 2004
UTR 1] wherein the maternal grandfather of the minor
contested with the father of the minor for custody of a girl
aged about 12 years. The Uttranchal High court in that case
gave the custody of minor to the father rejecting the
contention of grandfather (appellant) that the father
(respondent) after his remarriage will not be in a position to
give fair treatment to the minor. However, in that case, the
second wife of the father had been medically proven as unable
to conceive. Hence, the question of a possible conflict between
her affection for the children whose custody was in dispute
and the children she might bear from the father did not arise.
In the case before us, the situation is not the same and the
possibility of such conflict does have a bearing upon the
welfare of the children.
45. As this is a matter of interim custody till the final
disposal of the application GWC No. 64 of 2007, we are of the
opinion that the interests of the children will be duly served if
their current residence is not disturbed and a sudden
28
separation from their maternal relatives does not come on
their way. Irreparable injury will be caused to the children if
they, against their will, are uprooted from their present
settings.
46. The learned counsel for the appellant placed strong
reliance in the case of Hassan Bhatt v. Ghulam Mohamad
Bhat [AIR 1961 J & K 5] which held that the words "subject
to the provisions of this section" in sub-section 1 of Section 17
of the Act clearly indicates that the consideration of the
welfare of the minor should be the paramount factor and
cannot be subordinated to the personal law of the minor. The
view expressed by the High Court is clearly correct. As far as
the question of interim custody is concerned, we are of the
view that there is no conflict between the welfare of the
children and the course of action suggested by the personal
law to which they are subject.
47. At this juncture, we may mention the following factors to
which the learned counsel for the appellant invites our
attention. In the present case, respondent no. 1 is an old
person aged about 72 years and respondent no. 2 is already
29
married, living with his wife and children. Respondent no. 3
and 4 are unmarried and are of marriageable age. Respondent
no. 3, the maternal aunt of the children, will go to live with her
husband after marriage. Respondent No. 4 after his marriage
may or may not live with his father. There is nothing on
record to show that the appellant mistreated the deceased
mother of minor children. We cannot express our views on the
correctness of these averments. These are the matters that
must be gone into when the Family Court disposes of the
application for guardianship filed by the Respondents, and not
at this stage.
48. According to the appellant, from the fact that the
respondents raised the issue of death of his wife 10 months
after her death and one month after he refused the marriage
offer of Respondent No. 3, it must be inferred that the
respondents have raised this issue merely to obtain the
custody of children and that the respondents did not come to
court with clean hands. As far as the question of denying the
respondents the interim custody of children on the ground
30
that they had not approached the Court with clean hands, we
are constrained to say that we are not in a position to
conclusively infer the same. The alleged refusal on part of the
appellant to marry respondent no.3 which is said to have led
the respondents to file the application for guardianship, is
again question of fact which is yet to be proved. In Nil Ratan
Kundu and Anr. Vs. Abhijit Kundu, [(2008) 9 SCC 413] this
Court had enumerated certain principles while determining
the custody of a minor child. This Court under Paragraph 56
observed:
"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. Thus the strict parameters governing an
interim injunction do not have full play in matters of
custody."
49. The learned counsel for the appellant again relied on a
decision of B.N.Ganguly (supra) in which case the High Court
of Madhya Pradesh had held that there is a presumption in
law that parents will be able to exercise good care in the
welfare of their children if they do not happen to be unsuitable
31
as guardians. The facts of that case are quite different from
the one at hand. The contesting guardians in that case where
contesting on the basis of an alleged adoption, against the
parents of the child. Both the parents had joined in making
the application and nothing had been said against their habits
or way of living. The case stands altogether on a different
footing.
50. The High court had relied heavily on the preference made
by Athiya Ali who then was 10 to 11 years old. In the opinion
of High Court, she was capable of making intelligent
preference. It may be true that 11 years is a tender age and
her preference cannot be conclusive. The contention of the
appellant in this respect is also supported by the decision in
Bal Krishna Pandey's case (supra). But as we are not
dealing with the question of guardianship, but only with the
issue of interim custody, we see no reason why the preference
of the elder child shall be overlooked. It may be noted that the
Family Court had considered fact that the younger child had
instinctively approached his father while he met him in the
32
Court premises while vacating the interim order of injunction.
The second child who is just 4 years old cannot form an
intelligent opinion as to who would be the right person to look
after him and, hence, we must give weight to the preference
that Athiya had expressed.
51. We find it fit, however, to modify the visitation rights
granted to the appellant. He shall be allowed to visit the
children on Saturdays as well between 9 am and 5 pm.
52. The order of the High court is modified to the extent
indicated above, and the order of the Family Court dated 11th
of June, 2007 vacating its injunction order is set aside. The
Family Court is hereby directed to dispose of the case relating
to the guardianship of the two children after adducing
evidence by both the parties (both oral and documentary) at
an early date, preferably within six months from the date of
supply of a copy of this order to it.
53. We, however, make it clear that the observations made in
the order of the High Court as well as by this Court, if there be
33
any, shall not be taken to be final while deciding the original
application filed under Sections 7, 9 and 17 of the Act and the
Family Court shall be at liberty to proceed with the disposal of
the said proceeding independently of any of the observations
made by this Court in this judgment.
54. The appeal is thus dismissed. There will be no order as to
costs.
55. In view of the above judgment, the application for
impleadment becomes infructuous and is dismissed as such.
.............................J.
[Tarun Chatterjee]
New Delhi; ............................J.
January 05, 2010. [V.S.Sirpurkar]
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