The best interest and welfare of the minor children should be the predominant criterion in child custody matters, and compliance with court orders and undertakings is essential to serve the cause of the child's welfare.

1. The petitioner is the husband and the respondent is the wife. The contempt petition came to be filed for the alleged disobedience of the order passed by this court in O.P.No.571 of 2007, dated 11.11.2009. By the aforesaid order, this Court had directed the custody of the minor children in the hands of the respondent Wife. The petitioner father was allowed to have weekend custody in alternate Saturdays or Sundays if there was no examination for the children on the following Monday.

2. It must be noted that the boy Suraj is at present 17 years old and the girl Sonal is 14 years old. After 13.11.2010, the two children had not visited the petitioner during December and January. The respondent by not entrusting the children in the custody of the petitioner had violated the order passed by this Court. It is admitted by both sides that an appeal in O.S.A.No.153 of 2010 was filed as against the said order. During the hearing of the O.S.A., the violation was also brought to the notice of the Bench. In the affidavit, it was also indicated that on an application filed by the petitioner in M.P.No.3 of 2010, the passports of the two children were directed to be kept with the Registry. The petitioner also got permission to renew the passports and redeposit the same into the Court.

3. When the matter is pending before the Division Bench in the appeal, it is not clear as to why the petitioner has filed the present contempt. This Court directed the counsel who appeared for the respondent to get instructions from the respondent. Ms.Geetha Ramaseshan has filed a counter affidavit signed by her client, dated 21.3.2011. The respondent had denied any willful disobedience of the order passed by this Court. It is stated that her son Suraj is preparing to write entrance examination for IIT and that her daughter is going to 10th Grade in first April. It is claimed that both children had visited the petitioner on 27.11.2010. Their examinations were over only on 19.12.2010. When the children called the petitioner on 23.12.2010, he did not respond to their call. They had also visited his house on the same day, but were informed by the watchman that the petitioner was not in the house. Even on 13.1.2011 when daughter Sonal was expecting birthday wish from her father, the same was not forthcoming. There was no consistency in the stand of the petitioner. It is also claimed by Ms.Geetha Ramaseshan that a divorce petition is pending before the Family Court in HMOP No.3637 of 2007.

4. It is not clear as to how the contempt petition is maintainable especially when the order, over which the contempt petition is filed, is pending in the form of an appeal before the Division Bench and the parties had the advantage of getting the interim order. Further, the main divorce petition is also pending before the Family Court. Considering the explanation offered by the respondent, this court do not consider that there was any willful disobedience of the order passed by this Court.

5. In this context, it is necessary to refer to a judgment of the Supreme Court in Elizabeth Dinshaw v. Arvand M. Dinshaw reported in (1987) 1 SCC 42 in child custody matter. The following passage found in paragraph 8 may be usefully extracted below:

"8. Whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed Dustan in our chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in the United States of America and he was doi