( 1 ) THE petitioner/husband and the respondent/wife, both Canadian citizens married in the year 1987 in India at Delhi. Two children, named Arjun Kachroo and Bhareth Kachroo were born to them. The dispute of custody arising in the present case is now confined to the younger son Bhareth aged about 9 years since the other son Arjun has almost attained majority.

( 2 ) IN June 2001, the parties came to India to permanently settle down here, but after some time differences arose between the parties. A settlement was reached between the parties whereby it was agreed that: (a)The respondent would go back to Canada and start her practice as Doctor. (b)Both the children would also be admitted to their earlier school, Bay View Glen in Canada.

( 3 ) THEREAFTER, in December, 2003, the respondent, for the purposes of making arrangements to settle down there, went to Canada and came back to India in March, 2004. After she arrived in India, she claimed that she was denied access to both her children and, therefore, on 7th April, 2004, a guardianship petition No. 116/2004 was moved by her in the Court of Guardian Judge, Delhi, who after considering all the circumstances of the case and welfare of the minor child, by the impugned order dated 10th November, 2004 has allowed the custody of the younger son Bhareth to the respondent, and the respondent has also been allowed to go to Canada along with the younger son Bhareth.

( 4 ) THE main dispute in the present case relates to the custody of the minor child Bhareth. It is not in dispute that in so far as the child Arjun is concerned, he has almost attained majority and is capable of making decisions on his own. He is presently staying with his father. The learned counsel for the petitioner has assailed the order of the learned Additional District Judge which on the ground that the order at the interim stage does not take in to account the welfare of the child Bhareth and it was in his interest to stay with his father and his elder brother in Delhi and pursue studies in School at Gurgaon. The respondent/wife on the other hand supported the order impugned in the present petition by stating that the minor child s welfare was in his staying with the respondent mother who is a Doctor.

( 5 ) BEFORE the rival pleas in this case are appreciated, the following perspective has to be kept in mind:

(A) the husband, wife and two sons all are Canadian citizens. The petitioner husband continues to be a Canadian citizen and has not forsaken his Canadian citizenship. He is on a long visa till the year 2021 in this Country. Since the marriage in 1987, the parties have always been in Canada and both the children were born in Canada and are Canadian Citizens.

(B) in 2000, a divorce petition was filed in Canada by the petitioner husband and eventually it was agreed that the parties will give the marriage another chance and in 2001, the parties came back and settled in India. It is not in dispute that the petitioner was a successful Merchant Banker and had earned enough money in his job in Canada and U. S. A. so as to live a comfortably placed retired life. Since 2001, the children are studying in Delhi.

( 6 ) THE learned counsel for the petitioner Shri Rakesh Tikku challenged the impugned order inter alia on the following grounds:

(A) the impugned order is not conducive to the welfare of the younger child as the child has been well adjusted in Delhi/gurgaon since 2001 and disturbing him at this stage will be counter productive.

(B) the children will lose the core Indian values if they are made to travel to Canada.

(C) the minor child s memory of Canada is as best hazy as he was there till he was aged 4 or 5 years when he shifted to India and consequently his connection with Canada is at best tenuous.

(D) this order could not have been passed at interlocutory stage and could have awaited for the final decision.

(E) there is no way to ensure that the respondent, a Canadian Citizen, will honour the final