MANU/SC/0014/2010

Equivalent Citation: 2010(86)AIC 4, AIR2010SC 1417, 2010 (78) ALR 908, 2010(2)ALT19(SC ), 2010 (2) AWC 1229 (SC ), 2010(2)BomC R272, 2010
(1) C C C 135 , 2010(1)C TC 713, 2010(I)C LR(SC )276, 2010(1)HLR164, JT2010(1)SC 86, 2010(3)KarLJ1, (2010)2MLJ967(SC ), 2010MPLJ503(SC ),
2010(1)RC R(C ivil)696, RLW2010(3)SC 2297, 2010(1)SC ALE95, (2010)2SC C 654, [2010]1SC R49, 2010(1)UC 488, 2010(1)UJ255

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 11 of 2010 (Arising out of SLP (C) No. 24148 of 2007)
Decided On: 05.01.2010
Appellants: Athar Hussain
Vs.
Respondent: Syed Siraj Ahmed and Ors.
Hon'ble Judges/Coram:
Tarun Chatterjee and V.S. Sirpurkar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S. Balaji, B.M. Arun and Madhusmita Bora, Advs
For Respondents/Defendant: Nalini Chidambaram, Sr. Adv., Sunita Ojha and Vikas
Mehta, Advs.
Case Note:
Guardians and Wards Act, 1890 - Section 12 r/w Order XXXIX, Rules 1 and 2
of C.P.C.--Interim custody of minor children--Proceedings for guardianship
instituted by respondents under Sections 7, 9 and 17 of Act--Application filed
under Section 12 r/w Order XXXIX, Rules 1 and 2 for interim protection and
injunction--Ex parte interim injunction granted by Family Court--But
subsequently vacated--High Court on writ petition reversed order vacating
interim injunction and issuing certain directions--Whether liable to
interference--Minor girl aged 11 years making preference to reside with her
grand parents/respondents--Her preference cannot be overlooked--Interest of
children to be duly served--If their current residence not disturbed--Sudden
separation from their maternal relatives--To cause irreparable injury to them-
-However, visitation rights of appellant modified.
Case Category:
FAMILY LAW MATTER - CHILD CUSTODY MATTERS
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.

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3 . The appellant is the father of the minor children in whose respect interim custody
and guardianship have been sought 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 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 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, 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.

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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 25 th 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 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.
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 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

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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 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.
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.
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,

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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.
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.
2 1 . 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.
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.
2 2 . 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 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

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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 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, 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.
2 8 . 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. MANU/RH/0075/1963 : 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 MANU/MP/0059/1961 : AIR
1961 MP 173 it was contended by the learned Counsel for the 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.

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3 1 . 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:
3 2 . 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 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 MANU/SC/0260/1973 : (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 addition, because of her
profession and financial resources, may be in a position to guarantee better
health, education and maintenance for them.
3 4 . In the case of Mt. Siddiqunnisa Bibi v. Nizamuddin Khan and Ors.
MANU/UP/0241/1931 : 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

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custody in facts and circumstances of each case.
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 MANU/SC/0158/2001 : 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 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
MANU/SC/7671/2008 : 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.
3 9 . After taking note of the marked reluctance on part of the boy to live with his
mother, the Court further observed:
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.
4 0 . The children have been in the lawful custody of the respondents from October,
2007. In the case of Gaurav Nagpal v. Sumedha Nagpal MANU/SC/8279/2008 :

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(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 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 Anr. [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. 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. Daughter 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, 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.

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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.
4 4 . Further, the balance of convenience lies in favour of granting custody to the
maternal grandfather, aunt and uncle. 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. The learned Counsel for the appellant placed
reliance on the case of Bal Krishna Pandey v. Sanjeev Bajpayee
MANU/UC/0025/2002 : 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 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

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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 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 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. v.
Abhijit Kundu MANU/SC/7935/2008 : (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 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 Court premises while vacating the interim order of
injunction. The second child who is just 4 years old cannot form an intelligent opinion

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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 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.
5 5 . In view of the above judgment, the application for impleadment becomes
infructuous and is dismissed as such.

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