The welfare and interest of the minor child is the primary consideration in granting interim custody.

1. Though this matter is posted for orders, by consent of the learned counsel for the parties, it is taken up for final hearing. Heard and disposed of by this order.

2. This writ petition is directed against the order on I.A.No.3 dated 5.10.2013 in G&WC No.101/2012 on the file of the III Additional Principal Judge, Family Court, Bangalore.

3. The petitioner herein filed the above case under Sections 7 & 17 of the Guardians and Wards Act, 1890, for her appointment as the guardian of the minor child Master Aditya Rajiv Ratnam and for grant of his permanent custody. In the said case, respondent filed the application - I.A.No.3 seeking interim custody of the minor child.

4. The said application was opposed by the respondent. The Court below passed an order dated 5.10.2013 permitting the respondent to have the interim custody of the child on every 1st, 3rd and 4th Saturday between 10:00 a.m. to 05:00 p.m. The respondent was permitted to have the interim custody of the minor child on 9th and 12th of October, 2013 on the eve of Dasara festival. Liberty was reserved to the respondent to take the child to his home during the said visitation. The petitioner was directed to bring the child to Mantri Mall at 10:00 a.m. The respondent was directed to pick up the child in the said place and drop back at Mantri Mall at 06:00 p.m. The petitioner has called in question the validity of the said order in this writ petition.

5. This Court passed an interim order directing the petitioner to bring the child or by any one on her behalf to Mantri Mall at 02:00 p.m. on 19.1.2014. The respondent was permitted to take custody of the child and spend time with the child only within the premises of Mantri Mall. The respondent was directed to hand over custody of the child back to the petitioner or any person being present on her behalf known to the respondent at 06:00 p.m. This arrangement was continued by a further order dated 31.1.2014.

6. I have heard the learned counsel for the parties.

7. Learned senior counsel appearing on behalf of the petitioner would contend that the child is now aged about 4½ years. The Court below was not justified in granting custody of the minor child as indicated in the order impugned. It is argued that the opinion of the psychiatrist clearly shows that the child does not want to meet his biological father. The child is traumatized after meeting the respondent. It is further contended that the welfare of the minor child is paramount. Keeping in mind the welfare and interest of the child, custody of the child should not been given to the respondent-father.

8. On the other hand, learned counsel for the respondent has sought to justify the impugned order.

'It is his submission that the meeting the father of the child is also necessary for the healthy growth of the child. The reports of the 1st physiatrist cannot be made applicable to this case. The Court below has rightly granted custody of the minor child on certain days to the respondent – father so that it can be in the company of not only the father but also the grand parents."

9. I have carefully considered the arguments of the learned counsel made at the bar and perused the materials placed on record.

10. It is well settled that even while considering the grant of interim custody of the minor child the first and paramount consideration is the welfare and interest of the minor child and not the rights of the parents under the statute. The question of welfare of the child has to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts.

11. The child is now aged about 4 ½ years. The respondent is a Software Engineer and is employed. He is residing with his parents in his house. The petitioner is a MBA graduate and she is staying with her parents at Bangalore. She is not working and she can devote her time to take care of the child. It is not disputed that several cases are pending against each othe