IMPORTANT POINTS
1.Custody of the children should not undergo an immediate change.
2. 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.

Headnote:Guardian and Wards Act, 1890 – Sections 7, 9 ,12 and 17 read with Order 39 Rule 1 and 2 of the Code of Civil Procedure – Initiation of proceeding at the instance of the respondent1 maternal grandfather of two minor children of the appellant and respondent Nos. 2, 3 and 4 their maternal aunt and uncles under Sections 7, 9 and 17 of Act, 1890 – In the said pending proceeding under the Act, an application was filed under Section 12 of the Act read with Order 39 Rule 1 and 2 of 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 application filed under Sections 7, 9 and 17 of the Act – Family Court disposed of the application by passing an ex parte interim order restraining the appellant from interfering with the custody of the two children of the appellant-Application filed by appellant 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- Family Court vacated the ad–interim order of temporary injunction restraining the appellant from interfering with custody of the children with the respondents-Writ Petition – Order passed by High Court setting aside the order of Family Court – Appeal against judgment and order passed by High Court – The children had been in the lawful custody of respondents from October, 2007 – The custody of the minor children with the respondents was lawful and had the sanction of the order of High Court granting interim custody of the children in their favour – Hence, the consideration that the custody of children should not undergo an immediate change prevailed-Children were happy and were 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 – As far as the question of custody was concerned, the personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given preference – As far as question of interim custody was concerned no reason to override this rule of Mohammedan Law and, hence, a prima facie case was found in favour of respondents- Further, the balance of convenience was in favour of granting custody to the maternal grandfather, aunt and uncle – This being a matter of interim custody held that the interests of the children would be duly served if their current residence was not disturbed and a sudden separation from their maternal relatives did not come on their way- Irreparable injury would be caused to the children if they, against their will, are uprooted from their present settings – Order of the Family Court vacating its injunction order set aside – Appeal dismissed.
        (Paras 40 to 54)
       Facts of the Case :
        Present appeal has been filed against the judgment and order passed by the High Court by which the High Court had set aside the order of the Family Court, vacating its order of injunction passed against the appellant preventing him from interfering with the custody of his children with the respondents. Respondent1 was maternal grandfather of two minor children of the appellant and respondent Nos. 2, 3 and 4 their maternal aunt and uncles.
       Findings of the Court :
        The children had been in the lawful custody of respondents from October, 2007.The custody of the minor children with the respondents was lawful and had the sanction of the order of High Court granting interim custody of the children in their favour. Hence, the consideration that the custody of children should not undergo an immediate change prevailed. Children were happy and were 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 far as the question of custody was concerned, the personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given preference. As far as question of interim custody was concerned no reason to override this rule of Mohammedan Law and, hence, a prima facie case was found in favour of respondents. Further, the balance of convenience was in favour of granting custody to the maternal grandfather, aunt and uncle- This being a matter of interim custody held that the interests of the children would 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 would be caused to the children if they, against their will, were uprooted from their present settings. Order of the Family Court vacating its injunction order set aside. Appeal was dismissed.
       Result : Appeal dismissed.

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 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 child

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2010 Supreme(SC) 16

2010 (1) Supreme 1SUPREME COURT OF INDIATarun Chatterjee and V.S.Sirpurkar,JJ.Athar Hussain. — AppellantversusSyed Siraj Ahmed & Ors. — RespondentsCivil Appeal No. 11 of 2010(Arising out of SLP ) No. 24148 of 2007)Decided on : 05-01-2010

Cases Referred (5)

2010 (1) Supreme 1
SUPREME COURT OF INDIA
Tarun Chatterjee and V.S.Sirpurkar,JJ.
Athar Hussain. — Appellant
versus
Syed Siraj Ahmed & Ors. — Respondents
Civil Appeal No. 11 of 2010
(Arising out of SLP ) No. 24148 of 2007)
Decided on : 05-01-2010