child custody =In normal course, natural parents cannot be deprived of visiting rights of their child. But, in the instant case, the approach of the respondents to have the custody of the minor ward is something different from that of a normal parents' approach. The child was born on 25.04.2001. It is the case of the respondents that they left the child with the petitioners in the year 2004. But, the same is denied specifically by the petitioners and it is the case of the petitioners that on the 9th day after the birth, the minor ward was given to them and since then she is with them. Practically, the child has grown with the petitioners and is treating them as natural parents. Instead of seeking custody of their child through the competent court of law, it is clear that respondents made a futile attempt to have the custody forcibly, by making false allegations of kidnap and demand of money by the petitioners and obtained search warrant. Pursuant to such warrant, not only search was made in the house of the petitioners, but also in the School of the minor ward and she was taken by the Police from the School to the learned Magistrate. It appears, after enquiring the wishes of the child and her grandparents, petition was closed. Thereafter, the said order was also confirmed in Criminal Revision Case filed by the respondents referred hereinabove. Even thereafter, when the respondents filed a Writ of Habeas Corpus before this court, the same too ended in dismissal. In view of such steps taken against the petitioners and the minor ward, it appears, a sort of fear is developed in her mind and thereby she is even refusing to spare any time with them. Such attitude of the child was clearly discernible when she was examined by this court. When her wishes were enquired, she started crying inconsolably. Therefore, it cannot be said that she was tutored by the petitioners herein not to go with the respondents. For the aforesaid reasons, I am of the considered view that allowing visiting rights of the minor ward by the respondents, as ordered by the court below, will definitely have an adverse impact on the welfare of the minor ward and therefore I hold that the respondents are not entitled for any visiting rights of the minor ward unless a congenial atmosphere is developed.

HON'BLE MR. JUSTICE R. SUBHASH REDDY Civil Revision Petition No.1681 of 2011 16.12.2011 Mohd. Haleem @ Sajid and another Dr.Shafiuddin Ali Ahmed and another Counsel for the petitioner:Sri Mirza Safiulla Baig Counsel for respondents: Sri P. Keshava Rao Order: This civil revision petition, under Article 227 of the Constitution of India, is filed by the respondents in O.P.No.131 of 2010, questioning the order dated 22.03.2011 passed, in I.A.No.211 of 2010 in, by the learned III Additional District Jude, Warangal. 2. The aforesaid O.P. is filed under the provisions of the Guardians and Wards Act, 1890 (for short 'the Act') for grant of custody of minor ward - baby Shaika Ali Ahmed. Pending adjudication of the claim in the said O.P., they filed I.A.No.211 of 2010 under Section 12 of the Act for grant of interim custody of the minor ward. 3. The said I.A. is filed with the allegations which read as under: In the year 2004, the 1st respondent had to go to East Africa on his job assignment and the 2nd respondent was staying at Kazipet along with her in-laws. They were blessed with twins and as the Doctor advised to keep them separately to avoid infections, and as the petitioners are not having children, they were given custody of their minor ward temporarily. Later, they shifted to Hyderabad and used to visit their daughter once in a week and also used to bring her to Hyderabad during festivals and other occasions. It is alleged that from 2005 onwards, petitioners are claiming that the minor baby is their child, but at their instance, petitioners have executed a document dated 16.03.2005 admitting that the stay of the minor ward with them is temporary and they will hand over to the respondents whenever they request. Pleading that in spite of their request from the year 2005 onwards, petitioners are avoiding to hand over their minor ward to them and as they have no legal right on her for her custody, respondents have moved the I.A. for interim custody and also for visiting rights. It is alleged by the respondents that petitioners are not bestowing proper care to their daughter; as such they prayed for interim custody and also for visiting rights. 4. Petitioners herein, opposing the I.A., have filed counter. While denying the allegations of the respondents, it is the case of the petitioners that the minor ward was born on 25.04.2001 and on 02.05.2001, i.e. on the 9th day after birth, custody was given to them with complete willingness and consent and they have been looking after the child with care; she is aged about 9 years and she is not willing to join the respondents-parents. 5. In the aforesaid I.A., no evidence was let in by the parties, but the learned III Additional District Judge, Warangal, by the impugned order, by recording a finding that paramount consideration for grant of custody is the welfare of the minor and after enquiring with the minor ward, who has bluntly refused to go with the respondents, has rejected the claim of the respondents for custody of the minor during pendency of the proceedings. But, the I.A. was partly allowed permitting the respondents to have the visiting rights on the child on every 1st and 3rd Sunday between 3.00 to 7.00 p.m., at the house of the petitioners or at any place at Hanamkonda agreed by both parties, till the disposal of the O.P. 6. In this revision petition, it is contended by Sri Mirza Safiulla Baig, the learned counsel for petitioners, that the court below has committed serious error by permitting the respondents to have visiting rights. As the minor ward is not willing to spare any time even for visiting rights and in spite of her blunt refusal when she was examined, in spite of the same, the impugned order is passed. It is further contended that in view of the various steps taken by the respondents before filing of the I.A., if visiting rights are allowed, as ordered by the court below, it will affect the studies as well as the overall welfare of the child. 7. In support of his arguments, the learned counsel for petitioners has relied on a decision of the Hon'ble Supreme Court in Smt. Anjali Kappor v. Rajiv Baijal1 8. On the other hand, it is contended by Sri P. Keshava Rao, the learned counsel for respondents that as it is not in dispute that respondents are the natural parents, they are entitled for custody of the minor ward and also for visiting rights; as such, there is no illegality in the order under challenge wherein visiting rights were granted to them to visit the minor on every 1st and 3rd Sunday. It is further contended that as the minor ward is staying with the petitioners for the last several years, to maintain relationship and contact with her, such visiting rights are essential and therefore the same are granted by the court below. The learned counsel, in support of his contentions, relied on the following decisions. Vishnu Priya and Others v. Jaya2 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi3 Mohd. Zafarullah Khan v. Yasmeen4 Baddi Reddi Bulliraju v. Kedam Surya Rao5 9. Having heard the learned counsel for the parties, I have perused the order under challenge, the affidavit filed in support of the I.A. and also the counter filed thereagainst. 10. It is to be noticed that the minor ward was born on 25.04.2001. Whereas it is the case of the respondents that they left the child with the petitioners when the 1st respondent was proceeding to East Africa on an assignment, on the other hand, it is the case of the petitioners that respondents were blessed with twins; the child was handed over to them on the 9th day after birth, i.e. on 02.05.2001 with complete willingness and consent; they have admitted the child in a good school in Warangal and are taking good care of her. It is stated that the minor ward is not willing to spare any time with respondents. 11. In normal course, when visiting rights are given to natural parents, this court is slow in interfering with such orders passed during pendency of the main proceedings. The learned III Additional District Judge had enquired the wishes of the child. Further, when it was represented that the minor ward is not willing to spare any time with the respondents, even for visiting, on 13.09.2011, I personally enquired the wishes of the child in the presence of the parties and their counsels. When the child was asked whether she was willing to spend some time with the respondents, she started crying instantaneously and bluntly refused to go with the respondents. However, it is the case of the respondents that she was tutored not to go with the respondents; as such she is reluctant to join the respondents. But, the conduct of the child, when I examined her on 13.09.2011, would go to show that she has developed some sort of fear and is unwilling to spare any time with the respondents. It appears, respondents themselves are responsible for developing such attitude on the part of the child, by taking steps against the petitioners and the child. As evident from the additional material placed before this court and the averments made in the counter filed by the petitioners to the I.A., it is clear that respondents have not proceeded fairly to claim custody of the minor ward at initial stages. The 1st respondent herein, who is the natural father of the child, has filed Crl.M.P.No.9618 of 2008 before the XI Additional Chief Metropolitan Magistrate, Secunderabad alleging that the petitioners herein are demanding a ransom of Rs.1 crore to hand over the child by kidnapping her and obtained a search warrant. It appears, in pursuance of the order passed by the learned Magistrate, search was carried out in the house of the petitioners and as the minor ward was not found, the Police went to the School of the minor ward, took her and produced before the learned Magistrate. Ultimately, after examining the minor ward and also her grandparents, the learned Magistrate has passed the following order: "Police, Trimulgherry produced the baby by name Sheeka Ali Ahmed at 5.00 PM. On examination of both the persons and also baby, the baby has informed before the Court she want to go along with Mohd.Haleem, and wants to live with them. The grandfather and grandmother were also present and stated that they have given the baby for adoption. Hence it shows there is no criminal act for kidnap of the child. If at all there is any dispute with regard to the ownership of the child both parties are directed to approach the concerned court as this court has no jurisdiction. Hence baby was returned back to the respondent. Hence petition is closed." 12. Against the said order, respondents have filed Crl.R.C.No.289 of 2009 before this court, which was dismissed by a learned single Judge, by order dated 18.03.2009 confirming the order passed by the XI Addl. Chief Metropolitan Magistrate, Secunderabad. Further, alleging that the minor ward was detained illegally, respondents filed W.P.No.6409 of 2009 under Article 226 of the Constitution of India seeking a Writ of Habeas Corpus for production of the minor ward. The same was dismissed by a Division Bench of this court by order dated 03.06.2009. 13. It is not in dispute that the natural parents have preferential right for the custody of the child and in normal course they cannot be denied visiting rights of the child, but, the claim for visiting rights and custody are to be examined keeping in mind the welfare of the child, which is the paramount consideration. Such view is taken by the Hon'ble Supreme Court in number of decisions wherein it is stated that ward's welfare is to be taken as paramount consideration while considering applications for grant of interim custody and visiting rights. At this juncture, I refer to the judgment of the Supreme Court in the case of Anjali Kapoor (1 supra) wherein, while allowing the maternal grandmother of the ward to retain the custody of the child, the Hon'ble Supreme Court has held as under: "Ordinarily, under the Guardians and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant/grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child." 14. Further, in the judgment in the case of Vishnu Priya and others (2 supra), relied on by the learned counsel for respondents, when the minor children refused to go with the father, the Supreme Court has held that forcibly putting children in the custody of the mother would traumatize them and do no good to anybody. In such circumstances, it is held that better course would be to allow the mother to make initial contact with the children and build her relationship with them and gradually restore her position as mother. In the case of Kirtikumar Maheshankar Joshi (3 supra) when there was a claim for grant of custody of minor children by father as well as maternal uncle, the Hon'ble Supreme Court has held that though the father, being a natural guardian, has a preferential right to the custody, but, in the interest and welfare of the children, directed to hand over custody of the children to their maternal uncle instead of their father. Further, in the case of Mohd. Zafarullah Khan (4 supra), a learned single Judge of this court has indicated the factors to be taken into account in considering the question of granting interim custody of minors pending consideration of applications under Section 7 of the Act. From the said judgment, it is clear that, ultimately, the welfare of the child is the paramount consideration for the purpose of giving interim custody and also visiting rights. In this case, it is to be noticed that when wishes of the minor child were enquired into even by this court, she has bluntly refused to go with the respondents. Even with regard to grant of visiting rights, the same are not absolute and paramount consideration is to be given to the welfare of the child. The word 'welfare' has no precise meaning. While considering the welfare of the child, various aspects such as wellbeing, happiness of the child and the surroundings in which the child is being brought up and also the education of the child are to be examined having regard to the facts and circumstances of each case. In normal course, natural parents cannot be deprived of visiting rights of their child. But, in the instant case, the approach of the respondents to have the custody of the minor ward is something different from that of a normal parents' approach. The child was born on 25.04.2001. It is the case of the respondents that they left the child with the petitioners in the year 2004. But, the same is denied specifically by the petitioners and it is the case of the petitioners that on the 9th day after the birth, the minor ward was given to them and since then she is with them. Practically, the child has grown with the petitioners and is treating them as natural parents. Instead of seeking custody of their child through the competent court of law, it is clear that respondents made a futile attempt to have the custody forcibly, by making false allegations of kidnap and demand of money by the petitioners and obtained search warrant. Pursuant to such warrant, not only search was made in the house of the petitioners, but also in the School of the minor ward and she was taken by the Police from the School to the learned Magistrate. It appears, after enquiring the wishes of the child and her grandparents, petition was closed. Thereafter, the said order was also confirmed in Criminal Revision Case filed by the respondents referred hereinabove. Even thereafter, when the respondents filed a Writ of Habeas Corpus before this court, the same too ended in dismissal. In view of such steps taken against the petitioners and the minor ward, it appears, a sort of fear is developed in her mind and thereby she is even refusing to spare any time with them. Such attitude of the child was clearly discernible when she was examined by this court. When her wishes were enquired, she started crying inconsolably. Therefore, it cannot be said that she was tutored by the petitioners herein not to go with the respondents. For the aforesaid reasons, I am of the considered view that allowing visiting rights of the minor ward by the respondents, as ordered by the court below, will definitely have an adverse impact on the welfare of the minor ward and therefore I hold that the respondents are not entitled for any visiting rights of the minor ward unless a congenial atmosphere is developed. 15. For the foregoing reasons, civil revision petition is allowed. Order dated 22.03.2011 passed, in I.A.No.211 of 2010 in, by the learned III Additional District Jude, Warangal, is set aside. Consequently, I.A.No.211 of 2010 stands dismissed. No order as to costs. _____________________ (R.SUBHASH REDDY, J) December 16, 2011 N.B: L.R. Copy be marked B.O. MRR

in a petition for appointment of guardian for a minor child, an interlocutory application for injunction against the mother to restrain her from in any manner disturbing the custody of the child at the instance of a stranger is not at all maintainable.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated :     28/01/2011

CORAM:

THE HONOURABLE MR. JUSTICE D.MURUGESAN
and
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU

O.S.A.No.331 of 2010 and
M.P.No.1 of 2010

1.Mrs.Sarah Vijayalakshmi
2.Venugopal
3.Sarala     ... Appellants

  -Vs-

Dr.J.D.Devadatta ... Respondent


PRAYER :- This appeal filed under Order 36 Rule 1 of the Original Side Rules, 1956 r/w clause 15 of letters patent against the judgment and decree made in Application NO.1249 of 2009 in O.P.No.687 of 2009 dated 30.08.2010 by  Hon ble Mr.Justice V.Periya Karuppiah.

For Appellants : Mr.V.Raghavachari for
 Mr.V.Karthikeyan

For Respondent    : Mr.T.V.Ramanujam, SC for
 Mr.C.Rajan

JUDGMENT


(Judgment of the Court was delivered by S.NAGAMUTHU,J.)

Challenge in this appeal is to the order made in Application No.1249 of 2009 in O.P.No.687 of 2009 dated 30.08.2010 wherein, the learned Single Judge has granted interim injunction against the appellants restraining therein  from interfering with the custody of minor child Sharon Rose who is under the respondent s care.

2.The facts of the case are as follows:-

The first appellant is the biological mother of the female child in question. The appellants 2 & 3 are the parents of the first appellant. The respondent is a Christian by religion whereas, the appellants claim that they are Hindus and the child is also a Hindu.  The father of the child is no more. While so, according to the respondent, the child was given in adoption to him and his wife by the first appellant by means of a registered Deed of Adoption dated 22.11.2000. It is the case of the respondent that all along the minor child has been in his care and custody and he has been bringing her up. It is his further case that the child is now studying in a school at Vellore and the respondent is taking full care of her education, safety, health etc. On the basis of Deed of Adoption, the respondent has filed O.P.No.687 of 2009 seeking an order appointing him as guardian of the person and property of minor Sharon Rose and the said original petition is pending.

3.During the pendency of the said case, the respondent filed Application No.1249 of 2009 before the learned Single Judge of this Court praying for an interim injunction restraining the appellants herein from interfering with the custody of the minor child under the respondent s care during the pendency of O.P.No.687 of 2009.

4.The main contention of the appellants is that in a petition for appointment of guardian for a minor child, an interlocutory application for injunction against the mother to restrain her from in any manner disturbing the custody of the child at the instance of a stranger is not at all maintainable. The learned counsel for the appellants would submit that the Deed of Adoption said to have been executed, upon which reliance is placed by the respondent, is void under law and therefore, the respondent is an utter stranger to the child and so, the custody of the child should not be allowed to be with the respondent. The learned counsel would further, while reiterating the grounds raised in the appeal, submit that the learned Single Judge ought to have directed the custody of the child to be with the first appellant . He would further add that allowing the child to be in the custody of the respondent would be detrimental to the interest and welfare of the child. For all these reasons, the learned counsel would submit that the order of the learned Single Judge needs to be interfered with.

5.Per contra, the learned Senior Counsel appearing for the respondent would submit that though technically, an order of temporary injunction to restrain the first appellant to see the child cannot be granted, nevertheless, the order impugned in this appeal should be construed as an order under Section 12 of the Guardians and Wards Act, 1890. The learned counsel would submit that the validity of the document or the factum of the adoption cannot be gone into in this appeal as it is the matter to be gone into only in the original petition. He would further submit that the child has been continuously in the custody of the respondent for several years and the same cannot be denied by the first appellant. He would further submit that the learned Single Judge had an occasion to hear the child personally and from out of the same, it came to light that the child is interested only to be in the custody of the respondent. He would further submit that taking the child now from the custody of the respondent would be detrimental to the welfare of the child  as the same would drastically affect the mind, health and education of the child. He would further add that while deciding the interim custody of a minor child, it is not material as to whether the person in whose custody the child is now kept has got legal right to have custody and instead, it is only the welfare of the child which is paramount.

6.The learned counsel on either side have relied on few judgments of this Court as well as  the Hon ble Supreme Court about which, we would make reference at the appropriate stage of this judgment.

7.In respect of the maintainability of interlocutory application for injunction, as rightly pointed out by the learned Counsel appearing for the appellants, under Order XXI  of the Madras High Court Original Side Rules, which governs all proceedings under the Guardians and Wards Act, 1890, there is no express provision empowering this Court to entertain an interlocutory application for granting any order of injunction, as it has been done in the instant case. But the learned counsel would submit that as per Order I Rule 3 of the Madras High Court Original Side Rules, those provisions of Code of Civil Procedure which are not inconsistent with the Madras High Court Original Side Rules shall be applicable to the proceedings before the High Court. The Original Side Order I Rule 3 reads as follows:-
R.3.Except to the extent specifically provided for by these rules, the provisions of the Code shall apply to all proceedings. The rules and forms mentioned in Appendix III hereto and all previous rules and forms, and the provisions of the Code, so far as such provisions are inconsistent with these rules and forms, are hereby repealed and superseded and the following rules, orders and forms shall stand in lieu thereof.

8.The learned Senior Counsel would submit that under Section 94 C.P.C., this Court is therefore, empowered to grant an order of injunction in order to prevent the ends of justice from being defeated. Therefore, according to the learned counsel, the learned Single Judge was right in entertaining the interlocutory application and in granting the order of injunction. In view of the fact that there is no inconsistency between Section 94 C.P.C., and the provisions of the Madras High Court Original Side Rules, we are also of the view that as per Section 94(c) C.P.C., this Court can very well entertain an interlocutory application for grant of temporary injunction.

9.The next question which arises for consideration is as to whether such an order of injunction could be granted against the biological mother of the child even before the validity of the adoption deed has not been decided by this Court in the main petition. When such a question was posed, the learned Senior Counsel appearing for the respondent would submit that the order impugned in this appeal may be construed to be an order of protection of the minor child passed under Section 12 of the Act and not an order of injunction in its strict legal sense. Of course, we find force in the said argument. It is needless to point out that while passing an interim order under Section 12 of the Act, the paramount consideration of the Court will be only the welfare of the minor child. In this regard, the learned Senior Counsel has relied on a judgment of the Hon ble Supreme Court in Nil Ratan Kundu v. Abhijit Kundu (2008(9) SCC 413) wherein, the Hon ble Supreme Court, after having elaborately dealt with the law on the subject and after having made a thorough survey of several other judgments of the Hon ble Supreme Court, in paragraph No.52, has held as follows:-
52........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.

10.In view of the above well settled law, this Court, perhaps, cannot be  much concerned about the procedure followed by the learned Single Judge in passing the order. As has been repeatedly held by the Hon ble Supreme Court, the procedure is only a hand maid of justice and that  itself is not the end. As held by the Hon ble Supreme Court, in the above case, the paramount consideration is only the welfare and well being of the child.

11.The said judgment came up for consideration by the Hon ble Supreme Court again in Athar Hussain v. Syed Siraj Ahmed and others (2010 (2) SCC 654). In the said case, the grand parents of the minor child filed petition under Section 7,9 and 17 of the Act before the Family Court. During the pendency of the said proceedings, an application was filed under Section 12 of the Act r/w Order 39 Rules 1 and 2 of C.P.C. The Family Court in the said interlocutory application, passed an exparte interim order of injunction restraining the father of the children from interfering with the custody of the two children. Seeking to vacate the same, the father of the minor children, filed a petition before the Family Court under Order 39 Rule 4 C.P.C. The Family Court vacated the interim order of injunction on the ground that there was neither prima facie case made out nor balance of convenience in favour of the grand parents nor vacating the interim order would cause irreparable injury to them.

12.Aggrieved over the said order, the grand parents filed a writ petition before the High Court of Karnataka. The High Court by its order, set aside the order of the Family Court by which it had vacated the interim order of injunction and passed an order giving visitation right to the father. It was against the same, the matter came up before the Hon ble Supreme Court. After having considered the rival contentions, the Hon ble Supreme Court in paragraph No.29, has held as follows:-

29.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.

13.As extracted above, the Hon ble Supreme Court directed the custody of the children to the grand parents. While passing the impugned order, the Hon ble Supreme Court had to elaborately deal with the scope of Section 12 of the Act in paragraph No.30 of the said judgment which reads as follows:-

30...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; (emphasis supplied) In matters of custody, as well settled by judicial precedents, the welfare of the children is the sole and single yardstick by which the court shall assess the comparative merit of the parties contesting for the 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.

14.Thus, the Hon ble Supreme Court has reiterated the well settled law regarding the paramount consideration to be had by a Court while passing interim order regarding the custody of the minor children. While discussing about the welfare of the child, the Hon ble Supreme Court has held that the question of custody is different from the question of guardianship. In other words, one may continue to be the natural guardian, but still, he may not be given custody of the minor children as in the opinion of the Court, handing over custody of the minor children to the guardian himself may not be in the interest of the minor children. In paragraph No.31 of the said judgment, it has been held as follows:-
31.We are mindful of the fact that, as far as the matter of guardianship is concerned, the prima facie case lies in favour fo the father as under Section 19 of the Guardians and Wards 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.

15.In the case on hand, it is the main contention of the appellants that though the respondent is not legally entitled to be the guardian, the learned Single Judge has allowed him to keep the custody of the child which according to them is not in the interest of the minor child. We are not persuaded by the said argument. As it has been held by the Hon ble Supreme Court, as extracted above, in this appeal, we are not called upon to decide the question of entitlement for guardianship. Per contra, we are called upon to decide the question of interim custody of the child which shall be done by having regard to the welfare of the child as the paramount consideration. Therefore, whether the respondent would ultimately succeed in getting himself appointed as a guardian or not and whether the document in question is valid under law and whether there has been a valid adoption or not are all matters which cannot be adjudicated upon in this appeal.  It is not in dispute that the child in question has been all along in the custody of the respondent. The child is studying in a school at Vellore. She is brought up and educated only  by the respondent. When a specific query was raised to the learned counsel for the appellants as to whether the first appellant has been paying at least tuition fees for the education of the child, the answer came in the negative. Therefore, it is crystal clear that the respondent has been keeping the child in his custody and has been bringing her up well by giving good education. At this juncture, we may refer to the order passed by the learned Single Judge while granting an exparte interim order regarding the child wherein, the learned Judge has held as follows:-

8........ Though the first respondent is the biological mother, I am of the view that in the interests and welfare of the minor, the education of the minor should not be disturbed at this stage. Therefore, a limited injunction is granted restraining the respondents from interfering with the education  and upbringing of the minor daughter.

16.As a matter of fact, as seen from the order of the learned Judge, the child who was then aged 13 years was produced before the learned Judge. The learned Judge had the benefit of interviewing the child in open Court. In the impugned order, the learned Judge has made an observation that the child is a grown up girl and she is able to answer without any hesitation to the questions posed by the Court; she has categorically stated that she is willing to live under the care and custody of the respondent herein. She has further stated that she had seen the first appellant in the Church when she went to the Church and she had not even wished her mother. It is in these circumstances, the learned single Judge was of the view that it would be in the interest and welfare of the child that she be continued in the custody of the respondent. In our considered opinion we do not find any material on record to take a different view.

17.The learned counsel for the appellants would submit that in the case cited supra, the controversy was between the persons who are closely related to the minor children whereas, in the instant case, the respondent is a total stranger to the child. Therefore, according to him, it would not be proper to allow the custody of the child in the hands of such a total stranger. This argument does not persuade as all. As we have already stated, the respondent cannot be stated as a total stranger. He is now supported by the adoption deed. As we have already stated, whether the the deed is valid and whether the adoption is valid or not cannot be gone into in this appeal. When it is not in controversy that the child has been all along in the custody of the respondent for about 10 years, when the child is studying in a school under the care and custody of the respondent, more particularly, the child herself has expressed her willingness to be in the custody of the respondent, as rightly held by the learned Single Judge, it would not be in the interest of the child, at this stage to disturb the custody. Since it is only an interim measure, having regard to the welfare of the child, we are not convinced that the custody of the child should be immediately changed to the hands of the first appellant.

18.Lastly, the learned counsel for the respondent would rely on a judgment of this Court in K.Jayaraj v. Eva Mary Elezabeth (2009(6) MLJ 1060) wherein a learned Single Judge of this Court in paragraph No.19 has held as follows:-

19.There is no evidence let in, in this case by the respondent to show that the petitioner being the father had dis-entitled himself from having the custody of the child. It is needless to state that there is no substitute for the child being brought up with its biological parents. Before the custody being entrusted with any other person, the real parents custody must be explored. Only such care and concern alone can bring up the child in a natural environment. The Courts have reiterated that what was the best interest of the child must be taken into account in deciding the custody matter. In the present case, the dispute is not between the father and the mother or between the father and the near relatives of the mother. The dispute is between the natural guardian being father and a third party, who got the child s custody by an outsider and who was not legally competent to do it.

In our considered opinion, the view taken by the learned Single Judge in the said case has got no application to the facts of the present case because, that was a case where, upon evidence recorded, permanent custody of the child was decided, whereas, in the instant case, what is being dealt with is the question of interim custody and therefore, the principles followed in the said case have no application to the instant case.

19.At the same time, the learned Single Judge has not granted permission for the appellants to visit the child. In paragraph No.13 of the order, the learned Judge has held that the first appellant can apply for visitation right separately in the Original Petition and if filed so, the Court will consider and pass suitable orders after hearing both parties. Regarding this observation made by the learned Single Judge, we are not able to convince ourselves to agree with the same.

20.So long as the question of guardianship has not been finally decided and so long as the custody of the child as a permanent measure has not been decided, in our considered opinion, it would be in the interest of justice and in the interest of the chid as well as the appellants who are the mother, grand parents respectively, to give them visitation right to see the child. Denial of this right to the appellants would not be proper. In Athar Hussain v. Syed Siraj Ahmed and others (cited supra) the Hon ble Supreme Court has also granted such visitation right to the father of the children. Therefore, we are inclined to grant such visitation right to the appellants.

In view of the foregoing discussions, the order of the learned Single Judge is modified and the appeal is allowed in part in the following terms:-

(i)The child in question shall be under the care and custody of the respondent till the disposal of the  O.P.No.687 of 2009.

(ii)The respondent shall take utmost care for the child and assist for her development in all respects.

(iii)The appellants shall be permitted to visit the child on all Saturdays and Sundays between 9.00 a.m. and 5.00 p.m. During such visit, if the child expresses her willingness to go with the appellants, the appellants may take the child for outing between 9.00 a.m. and 5.00 p.m., and that the appellants shall ensure the safety and security of the child.

(iv)Both the parties should not cause any harm, either mental or physical, to the child.

(v)If any difficulty is experienced in complying with this order, the parties are at liberty to approach the learned Single Judge for appropriate further directions.  No costs.









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