V.B. Gupta, J.

1. The present appeal under Section 28(2) of the Hindu Marriage Act, 1955 (for short as the "Act") has been filed by the Appellant/Husband against an order dated 06:07.06 passed by Sh. K.S. Pal, Additional District Magistrate, Delhi whereby the Trial Court dismissed the application of the Appellant under Section 26 of the Act read with Section 151 of the Code of Civil Procedure, 1908 for grant of an interim custody of Appellants children by appointing him as a natural guardian.

2. The relevant facts for disposal of the present appeal are that the marriage between the Appellant and Respondent was solemnized on 23.01.92 at New Delhi according to Hindu rites and ceremonies and the same was registered with the Registrar of marriage under the Act in Delhi on 18.08.93. Two children were born out of this wedlock. The elder son Master Vaibhav Kasturia was born on 18.11.92 and the younger son Master Vishesh Kasturia was born on 10.01.98. Later on, there started differences between the parties and in Nov. 2001 the appellant shifted to Germany to work in Brandenburg Technical University, Germany. Respondent and two sons also came to Germany in April 2002. On 27.12.02, a Separation Agreement was concluded between the parties with the intentions to get divorce. On the issue of the right to determine the residence of the children, it was decided that this right would remain with both the parents. According to this Agreement, both the parties were supposed to have custody of the children alternatively for a week.

3. It has been stated by the appellant that sometime after the separation, the Respondent with intention to agonize and fetch money from the Appellant filed a case in the Local Courts of Cottubus, Germany. The Local Court of Cottbus, Germany vide order dated 08.05.03, granted the right to determine the place of residence of the children to the Respondent.

4. The Appellant filed an appeal dated 12.09.03 before the Brandenburg Higher Regional Court, Germany challenging the above said order. Higher Court of Germany, vide judgment dated 30.10.03 cancelled Respondents right to determine the residence of the children to the Local Courts of Cottbus for new Trial.

5. It has been alleged by the Appellant that during the pendency of the above referred case, Respondent stopped compliance of the Separation agreement.

6. Aggrieved as above, Appellant filed an application before the Local Court of Cottbus on 12.09.03 and vide interim order dated 22.10.03, the Court allowed the Appellant to have the custody of the children every alternative Saturday from 10 am to 6 pm till the disposal of the Custody case.

7. On 26.06.04, the parties left Germany and reached India. It is alleged by the Appellant that on return, at the Airport, the Appellant met an accomplice of the Respondent who claimed to be from police. He told the Appellant that Respondents father had filed a complaint against the appellant before police and this way Respondent forcibly took the children away from the Appellant.

8. It is further stated by the Appellant that he is a Software Engineer by profession and since graduation has been working with highly reputed companies and Multinationals and he is in a much better position to look after and care the children for a bright future while the Respondent is a house wife and had no income of her own and was wholly dependent on the Appellant since the commencement of marriage. It is further alleged that the Respondent along with both the sons has been living with her parents in a two rooms apartment at Mayur Vihar and due to congested environment, the Respondent cannot provide healthy growth and good education to the children. The Trial Court has erred in holding that the Appellant is not entitled for interim custody or any visitation rights with the children though the prayer in the application of the Appellant was only with regard to the interim custody. The Trial court has ignored the fact that the father is the l