O.A.No.1249 of 2009 in O.P.No.687 of 2009 V.PERIYA KARUPPIAH, J., This application has been filed by the petitioner in the main O.P., seeking for an order of interim injunction restraining the respondents or her men or agents from interfering with the custody of the minor child Sharon Sharon Rose under the care of the applicant during the pendency of the proceedings. 2. The main O.P., has been filed by the applicant/petitioner praying for appointment of the petitioner as guardian for the person of the minor namely Sharon Rose. 3. Heard Mr.V.K.Sathyamoorthy, the learned counsel for the applicant and Mr.V.Ragavachary, the learned counsel for the respondents. 4. The learned counsel for the applicant would submit in his argument that the applicant is a retired Professor of Surgery, at CMC Hospital, Vellore, holding important post in the said College at Vellore and his wife is a Gynaecologist working as Head of the Staff Student Clinic in CMC Hospital Vellore. He would also submit that the applicant and his wife, have two daughters, one is a Teacher and another is a Doctor, working in St.Thomas Hospital, Chennai. He would further submit in his arguments that the minor child Sharon Rose, who is now aged about 12 years, has born on 29.11.1997 to the 1st respondent and her late husband Ramesh and the applicant was given the custody of the minor in an unfortunate circumstance, when the 1st respondent and her husband had attempted to commit suicide and in the attempt, the 1st respondent survived and was in a pathetic condition and during the said time, she being a patient taking treatment under the applicant's wife told her sob stories and about the difficult circumstance they had and the petitioner's wife took sympathy on her and consoled her and the 1st respondent being the mother of the minor child Sharon Rose and the respondents 2 and 3 who are the maternal grand parents of the child, have voluntarily baptized themselves into Christianity and the 1st respondent was seriously looking after the orphanage for admitting the minor child. However, the applicant and his wife decided to adopt the child and bring her up as their own child with intention to grow up the child in a good atmosphere with a very good education. Accordingly, a document was executed by the 1st respondent in favour of the applicant and the 1st respondent handed over the custody of the child Sharon Rose to the applicant's care and guardianship. The document was duly executed by the 1st respondent and thereafter, the child was studying under the care and custody of the applicant from 2000 onwards. Recently, the 1st respondent, with the vested interest of some other 3rd parties, on their advise, threatened the applicant that the child should be handed over to her on 10.12.2009, failing which she would forcibly take the child from the custody of the applicant. If such an event would have taken place, it would be against the welfare of the child and the whereabouts of the child could also be not known and therefore, interim injunction may be granted, till the disposal of the O.P. 5. The learned counsel for the respondents would submit in his arguments that the 1st respondent, after the death of her husband, because the natural guardian of the minor and the legal right accrued on her, cannot be measured by an order of injunction. He would further submit that the applicant is claiming the right of the custody of the minor child, by virtue of the adoption deed, which is not at all valid in law. He would further submit that there is no semblance of right which the applicant had over the child and the actual name of the child was Akilandeswari, but however, she was converted into Christianity and she was named as Sharon Rose, which is not correct. Similarly, he would also submit that the 1st respondent name is only Vijayalakshmi and she has not been converted to Christianity and her name was also falsely mentioned as Sarah Vijayalakshmi. He would further submit in his arguments that the 1st respondent is working as a nurse, after completion of nursing education and she is able to look after the child and therefore, she may be given the custody of the child. He would also submit in his arguments that the child is now 13 years old and she has now attained puberty and it is unsafe for a girl child to be in the custody of the applicant, omitting the care of the child. He would submit in his arguments that she is the only child of the 1st respondent and absolute stranger has taken the custody of the minor child under the guise of the document and there is nothing stated against the 1st respondent and the 1st respondent has no adverse interest against the child and therefore, the claim of the applicant for interim injunction cannot be sustained. 6. The learned counsel would further submit in his arguments that the minor child is ordinarily residing within Vellore City and therefore, the the District Court, Vellore, alone has got jurisdiction and the application filed under the provisions of the Guardian and Wards Act, and the application seeking temporary injunction, cannot be maintainable and sustained. He would submit various judgments of this Court in support of his arguments as reported in 1970 Madras 427 in between "P.Williams Vs. P.C. Martin", AIR 1952 Madras 284 in between "Zynab Bi alias Bibijan Vs. Mohammad Ghouse Mohideen" and AIR 1995 Madras 244 in between "Santhanalakshmi Vs. S.Murugesan" and 2009 (6) MLJ 106 in between "K.Jayaraj Vs. G.Eva Mary Elezabeth", for the claim that the 1st respondent as mother cannot be deprived of the custody of the minor child, as natural guardian. He would also draw the attention of this Court to the judgment of Delhi High Court, reported in CDJ 2009 DHC 196 in between Mukand Swarup Vs. Manisha Jain in respect of the teritorial jurisdiction. He would also bring to the notice of this Court, a judgment of Apex Court reported in 1981 (4) SCC 517 in between Smt.Jeewanti Pandey Vs. Kishan Chandra Pandey in support of his arguments. He would further submit in his argument that the 1st respondent being the mother, cannot be deprived of the company of her daughter by virtue of an unlawful document and she is ready to take care and custody of the child which is unsafe to continue with the applicant and therefore, the application cannot be ordered as prayed for by the applicant. He would further submit in his arguments that the mother's love to the child cannot be substituted by any care and custody and therefore, the welfare of the child would be with the mother's nearness. Therefore, he requested the Court to dismiss the application. 7. I have given my anxious thought to the arguments advanced on either side. The child, namely Sharon Rose, but called as Akilandeswari by the 1st respondent, was given in custody to the applicant and his wife by the 1st respondent, through a deed of adoption in the year 2000. The said factum of handing over the custody is not disputed. The only point urged is that Christian parents cannot adopt a child and no such adoption is valid in law and therefore, the said document styled as an adoption deed, cannot give any right in respect of the custody of the child Sharon Rose or Akilandeswari to the applicant. The case put forth by both sides would also depict that the 1st respondent along with her husband attempted to commit suicide in the year 1999 and in that attempt, her husband died and the 1st respondent survived and therefore, the 1st respondent could not maintain the child and hence, she had executed an adoption deed in favour of the applicant and handed over the custody of the child to the applicant and his wife. Whether the adoption deed is valid or not and the factum of handing over the child for the difficulties of the 1st respondent at that time is not a disputed fact. The said adoption could be termed un-lawful, in case it is found that the Christians cannot enter into any act of adoption and if it is not a lawful agreement. Therefore, the factum of handing over the child with the applicant was with the consent of the 1st respondent. After handing over the child in the year 2000, time had rolled by and the cause of action for the main O.P., for the applicant to enforce right of guardianship had emanated only in the year 2009, and the 1st respondent had threatened the applicant by snatching the minor child from the custody of the applicant. All these years, and even now, the 1st respondent has not filed any petition for seeking for the custody of the minor child, namely Sharon Rose or Akila who is 13 years old and as per the submission of the learned counsel for the applicant, she also attained puberty and is studying in a reputed school at Vellore, under the care and custody of the applicant. The fact is that the 1st respondent had not asked for the custody of the child from the date of handing over the child with the applicant through the process of law. An argument was advanced by the learned counsel for the respondents that the motherly care cannot be equated to any other care or custody and he has pointed out various judgments of this Court to that effect. It is also brought to the notice of the Court that the 1st respondent is the natural guardian after the demise of her husband and therefore, the exercise of her right to custody is more important than the custody of the child. No doubt, it is true that the mother's love and care cannot be compensated by any care, but the 1st respondent, as mother, did not care the child, but attempted to commit suicide in the year 1999 leaving the destiny of the child at the hands of others. Even after the said attempt, she handed over the custody of the minor child to the applicant, since she did not care to look after the child and bestow care and affection by showering of love and affection over the child. 8. In the said circumstances, the insistence of the counsel for the respondents that the applicant's claim is overridden by the right of the 1st respondent, cannot be correct. In an earlier occasion, this Court had passed an order while granting an ad-interim injunction against the respondents observed thus: "Though the 1st respondent is the biological mother, I am of the view that in the interests and welfare of the minor, the education of the minor should not be disturbed at this stage. Therefore, a limited injunction is granted restraining the respondents from interfering with the education and upbringing of the minor daughter." The said order has been passed by this Court on 23.02.2010. 9. The welfare of the child is the foremost and paramount consideration and the Courts could also go to the extent of saying that the statutes regarding custody and precedents and other rules would not bind while considering the welfare of the minor child. In the aforesaid circumstances, this Court has to consider the welfare of the minor child as paramount consideration. In this context, it is relevant to notice the judgment of the Hon'ble Apex Court reported in 2008 (4) CTC 425 (SC) in between "Nil Ratan Kundu Vs. Abhijit kundu", and the relevant passage of the same would run thus: "Principles governing custody of minor children: "56. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor." Orders of Courts below not in consonance with law: " .... .... 59. We are unable to appreciate the approach of the Courts below. This Court in catena of decisions has held that the controlling consideration governing the custody of children is the welfare of children and not the right of their parents. 60. In Rosy Jacob, (Rosy Jacob Vs. Jacob A.Chakramakkal, 1973 (1) SCC 840), this Court stated: "The contention that if the husband (father) is not unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly may at times be somewhat misleading." 61. It was also observed that the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. The father's fitness cannot override considerations of the welfare of the minor children. 62. In our opinion, in such cases, it is not the 'negative test' that the father is not 'unfit' or disqualified to have custody of his son/daughter is relevant but the 'positive test' that such custody would be in the welfare of the minor which is material and it is on that basis that the Court should exercise the power to grant or refuse custody of minor in favour of father, mother or any other guardian." 10. The Hon'ble Supreme Court, in the yet another case, in a judgment reported in 2009 (1) SCC 42 in between "Gaurav Nagpal Vs. Sumedha Nagpal", observed as follows: "48. Merely because there is no defect in his personal care and his attachment for his children-- which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them." 11. The aforesaid judgment of Apex Court would go to show that the welfare of the child should be the paramount consideration, while deciding the issue on the custody of the minor child. Indisputably, the applicant is having the custody of the child and she is studying in a very good school and it comforts the minor. Moreover, the minor child Sharon Rose or Akila, aged about 13 years was produced by the applicant before Court and the Court interviewed the child in open Court. She is a well grown up girl and was able to answer without any hesitation to the question posed by this Court. She has categorically stated that she wanted to continue her education in the present school, under the care and custody of the applicant. She also answered that she had seen the 1st respondent in the Church, when she went to the Church and she had not even wished her mother. 12. When the facts are such and the answers given by the ward, namely minor child Sharon Rose (Akila as called by the 1st respondent) are not in favour of the respondents, it is not feasible for the 1st respondent or the other respondents to disturb the custody of the Ward Sharon Rose with the applicant. The right of the applicant to have the custody of the child cannot be found unlawful, when the welfare of the child is standing before the Court as the paramount consideration. The question of jurisdiction and other points raised by the respondents could be gone into only at the time of final disposal of the main O.P., since no application has been filed for rejecting the O.P., and the trial of the O.P., has to be completed. 13. In the aforesaid circumstances, it has become necessary for this Court to grant an order of interim injunction against the respondents by making the limited interim injunction already granted by this Court as absolute. However, the 1st respondent can apply for visitation right separately in this O.P., and if filed so, this Court will consider and pass suitable orders after hearing both parties, in the said application. This application is ordered in the above terms. 30.08.2010 Index : Yes / No Internet : Yes / No ssn V.PERIYA KARUPPIAH, J., ssn Pre delivery order in O.A.No.1249 of 2009 in O.P.No.687 of 2009 30.08.2010