Case: Athar Hussain Vs. Syed Siraj Ahmed &amp; Others

case gave the custody of minor to the father rejecting the contention of grandfather (appellant) that the father (respondent) after his remarriage will not be in a position to give fair treatment to the minor. However, in that case, the second wife of the father had been medically proven as unable to conceive. Hence, the question of a possible conflict between her affection for the children whose custody was in dispute and the children she might bear from the father did not arise. In the case before us, the situation is not the same and the possibility of such conflict does have a bearing upon the welfare of the children. 45. As this is a matter of interim custody till the final disposal of the application GWC No. 64 of 2007, we are of the opinion that the interests of the children will be duly served if their current residence is not disturbed and a sudden separation from their maternal relatives does not come on their way. Irreparable injury will be caused to the children if they, against their will, are uprooted from their present settings. 46. The learned counsel for the appellant placed strong reliance in the case of Hassan Bhatt v. Ghulam Mohamad Bhat [AIR 1961 J & K 5] which held that the words subject to the provisions of this section in sub-section 1 of Section 17 of the Act clearly indicates that the consideration of the welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor. The view expressed by the High Court is clearly correct. As far as the question of interim custody is concerned, we are of the view that there is no conflict between the welfare of the children and the course of action suggested by the personal law to which they are subject. 47. At this juncture, we may mention the following factors to which the learned counsel for the appellant invites our attention. In the present case, respondent no. 1 is an old person aged about 72 years and respondent no. 2 is already married, living with his wife and children. Respondent no. 3 and 4 are unmarried and are of marriageable age. Respondent no. 3, the maternal aunt of the children, will go to live with her husband after marriage. Respondent No. 4 after his marriage may or may not live with his father. There is nothing on record to show that the appellant mistreated the deceased mother of minor children. We cannot express our views on the correctness of these averments. These are the matters that must be gone into when the Family Court disposes of the application for guardianship filed by the Respondents, and not at this stage. 48. According to the appellant, from the fact that the respondents raised the issue of death of his wife 10 months after her death and one month after he refused the marriage offer of Respondent No. 3, it must be inferred that the respondents have raised this issue merely to obtain the custody of children and that the respondents did not come to court with clean hands. As far as the question of denying the respondents the interim custody of children on the ground that they had not approached the Court with clean hands, we are constrained to say that we are not in a position to conclusively infer the same. The alleged refusal on part of the appellant to marry respondent no.3 which is said to have led the respondents to file the application for guardianship, is again question of fact which is yet to be proved. In Nil Ratan Kundu and Anr. Vs. Abhijit Kundu, [(2008) 9 SCC 413] this Court had enumerated certain principles while determining the custody of a minor child. This Court under Paragraph 56 observed: 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. Thus the strict parameters governing an interim injunction do not have full play in matters of custody. 49. The learned counsel for the appellant again relied on a decision of B.N.Ganguly (supra) in which case the High Court of Madhya Pradesh had held that there is a presumption in law that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians. The facts of that case are quite different from the one at hand. The contesting guardians in that case where contesting on the basis of an alleged adoption, against the parents of the child. Both the parents had joined in making the application and nothing had been said against their habits or way of living. The case stands altogether on a different footing. 50. The High court had relied heavily on the preference made by Athiya Ali who then was 10 to 11 years old. In the opinion of High Court, she was capable of making intelligent preference. It may be true that 11 years is a tender age and her preference cannot be conclusive. The contention of the appellant in this respect is also supported by the decision in Bal Krishna Pandeys case (supra). But as we are not dealing with the question of guardianship, but only with the issue of interim custody, we see no reason why the preference of the elder child shall be overlooked. It may be noted that the Family Court had considered fact that the younger child had instinctively approached his father while he met him in the Court premises while vacating the interim order of injunction. The second child who is just 4 years old cannot form an intelligent opinion as to who would be the right person to look after him and, hence, we must give weight to the preference that Athiya had expressed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]32. Section 12 of the Act empowers courts to make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. In matters of custody, as well settled by judicial precedents, welfare of the children is the sole and single yardstick by which the Court shall assess the comparative merit of the parties contesting for custody. Therefore, while deciding the question of interim custody, we must be guided by the welfare of the children since Section 12 empowers the Court to make any order as it deems proper43. As is evident, the aforementioned decision concerned appointment of a guardian. No doubt, unless the father is proven to be unfit, the application for guardianship filed by another person cannot be entertained. However, we have already seen that the question of custody was distinct from that of guardianship. As far as matters of custody are concerned, the Court is not bound by the bar envisaged under Section 19 of the Act. In our opinion, as far as the question of custody is concerned, in the light of the aforementioned decisions, the personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given preference. To the extent that we are concerned with the question of interim custody, we see no reason to override this rule of Mohammedan Law and, hence, a prima facie case is found in favour of the respondents44. Further, the balance of convenience lies in favour of granting custody to the maternal grandfather, aunt and uncle. A plethora of decisions of this Court endorse the proposition that in matters of custody of children, their welfare shall be the focal point. Once we shift the focus from the rights of the contesting relatives to the welfare of the minor children, the considerations in determining the question of balance of convenience also differ. We take note of the fact that respondent no.3, on record, has stated that she has no intention to get married and her plea that she had resigned from her job as a technical writer to take care of the children remains uncontroverted. We are, hence, convinced that the respondents will be in a position to provide sufficient love and care for the children until the disposal of the guardianship application. The second marriage of the appellant, though a factor that cannot disentitle him to the custody of the children, yet is an important factor to be taken into account. It may not be appropriate on our part to place the children in a predicament where they have to adjust with their step-mother, with whom admittedly they had not spent much time as the marriage took place only in March, 2007, when the ultimate outcome of the guardianship proceedings is still uncertain. The learned counsel for the appellant placed reliance on the case of Bal Krishna Pandey v. Sanjeev Bajpayee [AIR 2004 UTR 1] wherein the maternal grandfather of the minor contested with the father of the minor for custody of a girl aged about 12 years. The Uttranchal High court in that case gave the custody of minor to the father rejecting the contention of grandfather (appellant) that the father (respondent) after his remarriage will not be in a position to give fair treatment to the minor. However, in that case, the second wife of the father had been medically proven as unable to conceive. Hence, the question of a possible conflict between her affection for the children whose custody was in dispute and the children she might bear from the father did not arise. In the case before us, the situation is not the same and the possibility of such conflict does have a bearing upon the welfare of the children45. As this is a matter of interim custody till the final disposal of the application GWC No. 64 of 2007, we are of the opinion that the interests of the children will be duly served if their current residence is not disturbed and a sudden separation from their maternal relatives does not come on their way. Irreparable injury will be caused to the children if they, against their will, are uprooted from their present settings