Hon’ble Amitava Lala, J.—This appeal arises out of the order dated 9th January, 2008 passed by the Principal Judge, Family Court, Varanasi refusing to pass an interim order of injunction regarding custody of minor Daksha in favour of the plaintiff-appellant under Section 12 of the Guardians and Wards Act, 1890 (hereinafter called as ‘Guardians and Wards Act’) fixing a date for conciliatory talks on 13th March, 2008.

2. Admittedly, minor Daksha, son of the defendant-respondent, is now staying with the plaintiff-appellant, who is maternal grandmother of the minor, at Varanasi, Uttar Pradesh. No order has been passed as yet by any Court in the State of Uttar Pradesh giving any custodial right in favour of the father, the defendant-respondent herein.

3. One Mrs. Dipika (since deceased), wife of the defendant-respondent and daughter of the plaintiff-appellant, expired on 24th/25th April, 2006 while she was residing with her parents at Varanasi. The plaintiff-appellant initiated a criminal proceeding of dowry death against the respondent husband of Mrs. Dipika, which was registered as Case Crime No. 13 of 2007, under Sections 304-B, 498-A, 504, 506 of Indian Penal Code read with Section 3/4 of the Dowry Prohibition Act at Police Station Mahila Mahanagar, District Varanasi. However, after the police investigation in the said criminal case a final report has been filed in favour of the defendant-respondent. But the Court below has not come to a final conclusion on such report due to non-availability of certified copy of the final report. But from the photocopy of the first information report lodged against the defendant-respondent by the plaintiff-appellant, the Court below observed that there is no allegation regarding the demand of dowry or any unnatural death. It is also observed by the Court below that defendant-respondent has filed photocopy of an application therein, being Paper (Page ?) No. 28C/2, which was filed by Sri Dwarika Das, husband of the plaintiff-appellant, in the Nagar Nigam Varanasi informing death of his daughter, to establish that cremation was done in presence of in-laws of the deceased, panches of Sindhi Samaj and relatives of plaintiff-appellant, and the cremation was done by Sri Avinash Badhya (Wadhva?), the younger brother of the defendant-respondent. It is also recorded by the Court below that after the death of the deceased, the defendant-respondent, being husband of deceased, took minor Daksha with him at his place of residence i.e. Bhopal, Madhya Pradesh. It is complained that one day the plaintiff-appellant and her husband in the pretext of taking minor Daksha for a walk took him to Varanasi. As a result whereof, the defendant-respondent has filed an application before the concerned Magistrate under Section 97 of the Code of Criminal Procedure, 1973 for search. Ultimately, considering all pros and cons i.e. prima facie case, balance of convenience and irreparable loss and injury, the Court below rejected the application for injunction and directed to place the matter on 13th March, 2008 for conciliatory talks.

4. According to us, in such type of proceedings a final decision could be reached weighing the balancing factors keeping in the mind the principle that right of the father, as a natural guardian, is unlimited but such right cannot be provided at the cost of welfare of the child. However, such stage has not yet been reached nor the custody is directed to be given by the Family Court at an interlocutory stage. Therefore, no right of the plaintiff-appellant has been infringed as yet. Thus, apparently the attempt to get an order of injunction regarding custody of the child by the plaintiff-appellant is a futile attempt. However, at the invitation of the defendant-respondent we have entered into different context as discussed below.

5. Mr. K.S. Tiwari, learned Counsel appearing for the defendant-respondent, raised an objection about maintainability of the appeal from such order refusing grant of in