JUDGMENT

Special leave granted.

2. Pradipkumar Karunashanker Joshi was married to Kumudlata. A son named Vishal was born on July 20, 1979 and a daughter Rachna alias Rikta on August 12, 1981. Unfortunately, Kamudlata died on January 12, 1991 and the cause of death mentioned in the postmortem report was "cardiorespiratory arrest due to some chemical poisoning................" The husband Pradipkumar is facing criminal charge under S. 498A Indian Penal Code. On February 17, 1991 the police recorded statements of the children.

3. Pradipkumar and family were residing at Rajkot. After the death of Kumudlata, Vishal and Rikta left their fathers house and went to Jamnagar to live with the family of their mothers brothers/sisters. Since then both the children are living with their maternal uncle Kirtikumar Maheshankar Joshi.

4. Kirtikumar, brother of Kumudlata deceased, filed an application before the District Judge, Jamnagar under the Guardians and Wards Act (Act) on February, 13, 1991 seeking a declaration that Pradipkumar, the father of the children, was unfit to be the guardian of Vishal and Rikta and a further prayer that he be appointed as guardian of the minor children. An interim injunction was granted by the District Judge, Jamnagar.

5. Pradipkumar also filed an application on February 17, 1991 before the District Judge at Rajkot for the custody of his minor children. The Judge passed an ex parte order deputing a Commissioner to produce the minor children in his Court on February 18, 1991. According to the Commissioner, Kirtikumar gave an undertaking that he would produce the children in the Court of District Judge at Rajkot on February 19, 1991 at 11.00 a.m. The children were, however, not produced in the Court and instead an appeal against the ex parte order of the District Judge, Rajkot was filed before the Gujarat High Court at Ahmedabad. A learned single Judge of the High Court passed a consent order, according to which,. the District Judge at Rajkot was required to pass fresh order after hearing both the parties. The consent order, however, could not be complied with as Kirtikumar filed an application, under S. 10 of the Civil Procedure Code, before District Judge Rajkot for the stay of the proceedings in that Court on the ground that similar proceedings were pending, from an earlier date, before the District Judge at Jamnagar. The District Judge Rajkot stayed further proceedings by its order dated April 22, 1991 and reported the matter to the High Court under S. 14 of the Act.

6. Aggrieved by the order of the District Judge Rajkot dated April 22, 1991 Pradipkumar filed a Civil Revision Application before the High Court. A single Judge of the High Court by its order dated July 24, 1991 decided the said Civil Revision and transferred the case pending before the District Judge, Jamnagar to the Court of District Judge, Rajkot. Kritikumar filed a Letters Patent Appeal against the judgment of the learned single Judge but the same was dismissed by a Division Bench of the High Court on January 9, 1992 on the ground that the Letters Patent Appeal was not maintainable against the judgment of the learned single Judge. This appeal via Special Leave Petition is by Kirtikumar.

7. Pursuant to our order dated March 27, 1992 the children namely, Vishal and Rikta are present before us in these chamber proceedings. Their maternal uncle Kirtikumar and their father Pradipkumar are also present. Vishal and Rikta both are intelligent children. They are more matured than their age. We talked to the children exclusively for about 20/ 25 minutes in the chamber. Both of them are bitter about their father and narrated various episodes showing illtreatment of their mother at the hands of their father. They categorically stated that they are not willing to live with their father. They further stated that they are very happy with their maternal uncle Kirtikumar who is looking after them very well. We tried to persuade the children to go and live with the