IMPORTANT POINTS
Guardian means a person having the care of the person of a minor or of his property or of both his person and property.
Guardian cannot remove the child out of jurisdiction of the court granting custody without its leave. Doing so would tantamount to contempt of court.
Father, even though natural guardian for male child, may be denied guardianship of person of the child whilst he is less than five years old.
Single Judge differing with opinion of another Single Judge in earlier writ petition and passing varying order is not proper. The subsequent Judge ought to recuse himself in preference to his Brother Judge who decided the previous Writ Petition.

Judgment

Vikramajit Sen, J.

1. Leave granted in both the Special Leave Petitions.

2. Civil Appeal of 2015 arising out of SLP(C) No.31615 of 2014 assails the Judgment dated 2nd August, 2014 passed by the High Court of Bombay at Goa in Writ Petition No.79 of 2014, which in turn questioned the Order dated 31.1.2014 passed by the IInd Additional Civil Judge, Senior Division at Margao, Goa (hereafter also referred to as the Civil Judge) in Matrimonial Petition No. 15/2013/II filed on 18.5.2013 before us, by the Respondent, Shri Arun Sharma (hereafter referred to as ‘Father’) under Section 6 of the Hindu Minority and Guardianship Act, 1956. In this petition the Father has prayed inter alia that (a) the custody of the minor child, Thalbir Sharma be retained by him and that (b) by way of temporary injunction, the Appellant before us (hereinafter referred to as the Mother) be restrained from taking forcible possession of the minor child Thalbir from the custody of the Applicant. These proceedings were initiated and are pending in Goa at the instance of the father; at that time when all three persons were residents of Goa. After a detailed discussion of facts, as well as of law, the IInd Additional Civil Judge, Senior Division Margao, Goa ordered that “pending final disposal of the petition on merits, the respondent, Roxann Sharma is granted interim custody of minor child Thalbir Sharma. The applicant shall have visitation rights to the child. He shall inform about his visit to the child in advance to the respondent upon which she shall allow applicant to visit the child”. A reading of this order discloses that the learned Civil Judge favoured the opinion that the custody of Thalbir, a child of tender years should remain with the Mother and thereby the child’s paramount interests would be sub-served and safeguarded; that the Mother holds a Master of Arts degree from Howard University, Washington D.C. and is a Tenured College Professor in Los Angeles Mission College, California; that the allegation of her suffering from Bi-polar disorder had not been persuasively proved and in any event, did not disqualify her to the custody of her son; that the Father is allegedly an alcoholic and a drug-addict who had joined a drug rehabilitation clinic, and was also a member of Narcotics Anonymous (N.A.); that Father had been previously married; and that he was not gainfully employed. The Impugned Order is also a detailed one in which the facts have been noted and the statutory laws as well as precedents, have been discussed.

3. However, in sharp divergence to the conclusion arrived at by the learned Civil Judge, the learned Single Judge of the High Court of Bombay at Goa has opined that “it cannot be disputed that for upbringing the child, love of the petitioner as well as the respondent who is the mother is very much essential for the healthy growth of such child. In such circumstances, though the custody would continue with the petitioner nevertheless, the respondent being the mother would definitely have frequent visitation rights of the minor child. Such visitation rights shall tentatively be for at least 3 days in a week. The parties are at liberty to fix such days before the learned Judge at a mutual agreeable place preferably within the jurisdiction of the Court”. The Court, we must immediately underscore is located in Goa and not in Mumbai. These directions have attained finality against the Father; the Mother would have been entitled to visitation rights for at least three days and equally importantly in Goa.

4. Before us, it has been narrated by the Mother that consequent upon her frantic searches for her son, Thalbir, she had came to learn in August, 2013, that the Father along with Thalbir was in Mumbai. She filed Criminal Writ Petition No.87 of 2013 which had been disposed of by Orders dated 26.8.2013 noticing that proceedings under the Hindu Minority and Guardianship Act, 1956 (HMG Act) were pending in Goa and directing that the Mother shoul