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

2. This appeal is directed against the judgment and order dated 8th of October, 2007 passed by the High Court of Karnataka at Bangalore by which the High Court had set aside the order dated 11th of June, 2007 of the Family Court, Bangalore vacating its order of injunction dated 21st of April, 2007 passed against the appellant in G.W.C. No. 64 of 2007 preventing him from interfering with the custody of his children with the respondents3. The appellant is the father of the minor children in whose respect interim custody and guardianship have been sought for. The respondent No.1 is the maternal grandfather of the two minor children of the appellant and respondent Nos. 2, 3 and 4 are their maternal aunt and uncles4. The appellant married one Umme Asma, daughter of respondent No. 1, in accordance with Islamic rites and customs on 31st of March, 1993. Two children were born out of the wedlock, Athiya Ali, aged about 13 years and Aayan Ali , aged about 5 years. Their mother Umme Asma died on 16th of June, 2006. Subsequent to the death of Umme Asma, the mother of two minor children, the appellant again married to one Jawahar Sultana on 25th of March, 2007 who in the pending proceeding had filed an application before the Family Court for her impleadment in the same5. A proceeding was initiated on 21st of April, 2007 at the instance of the respondents under Sections 7, 9 and 17 of the Guardian and Wards Act, 1890 (hereinafter referred to as `the Act) in the Court of the Principal Family Judge, Bangalore which came to be registered as G.W.C.No.64 of 2007. In the aforesaid pending proceeding under the Act, an application was filed under Section 12 of the Act read with Order 39 Rule 1 and 2 of the Code of Civil Procedure (in short `the Code) in which interim protection was prayed for of the persons and properties of the minor children and also for an order of injunction restraining the appellant from interfering or disturbing the custody of two children till the disposal of the application filed under Sections 7, 9 and 17 of the Act. The case that was made out by the respondents in the affidavit accompanying their application for injunction filed under Section 12 of the Act read with Order 39 Rule 1 and 2 of the Code was a follows :-6. On the same day on which the respondents filed the applications for being appointed as guardians and for interim injunction against the appellant, i.e. on 21st of April, 2007, the Family Court disposed of the application under section 12 read with Order 39 Rule 1 and 2 of the CPC, and passed an ex parte interim order restraining the appellant from interfering with the custody of the two children of the appellant7. Feeling aggrieved, the appellant filed an application against the order of the family court under Order 39 Rule 4 of the Code praying for vacation of interim order of injunction passed against him. In the Counter Affidavit accompanying the application filed on 28th of April, 2007 to vacate the interim order of injunction, he denied all averments made in the application filed by the respondents as incorrect and fabricated. It is not in dispute that the appellant is the father and natural guardian of the children. While respondent no.1 is aged about 72 years and is retired and hence is in no position to look after his children, respondent no.2 is living separately after his marriage; respondent nos. 3 and 4 are nearing the age of marriage and would go ahead with their own lives once married. Further respondent no.1 has another son whose wife divorced him on account of harassment for dowry and another daughter who was mentally retarded. These heavy responsibilities which already lie on the respondent make him unfit as a guardian of his children. The only motive of the respondents is to gain the property that the appellant had purchased in favour of Umme Asme8. Pursuant to a telephonic request made by respondent no.3, he dropped his children at their place on 21st of April, 2007. When he went back to collect them on 22nd of April, 2007, he was informed that they would be back only at night. On 23rd of April, 2007, he was told that the children had gone to Ooty and would return after a few days. Since the appellant had reasons to suspect the bonafide of the respondents, he lodged a complaint before the Inspector of Police, J.C. Nagar, Bangalore on 23rd of April, 2007. The respondents who were summoned to the police station gave an undertaking to the effect that the children would be back on 24th of April, 2007. It is alleged that though the respondents had procured the interim order of injunction on 21st of April, 2007 itself, they did not inform either the appellant or the Police authorities until 25th of April, 2007 on which day they produced the copy of the interim order to the appellant9. Appellant further alleged that his daughter had been missing classes as she was unduly retained by the respondents, who had no concern whatsoever with respect to the same10. The death certificate clearly showed leukemia as the sole cause of death of Umme Asma, contrary to the allegations of the respondents. He had deeply loved his wife and as a token of his love, had purchased a property in her name on which he constructed house entirely in accordance with her wishes. Contrary to what the respondents had alleged, all the expenses for the treatment of his wife and the education of the children were borne by the appellant. His relationship with his deceased wife and the children were indeed cordial. In order to secure education of high quality for his daughter, he got her admitted into a good school and had borne all related expenses, as proved from the receipts issued by the school authorities. He had also obtained an insurance policy in the name of his daughter11. It is for the vengeance of the appellants refusal to marry respondent no.3 who wished to marry him after the death of her sister, that they had filed the application claiming custody and guardianship of the children. The photographs produced before the Court were taken when the appellant himself took the respondents on an excursion along with his family in his own car. The mark sheets produced by the respondents bore forged signatures of the appellant whereas the documents bearing his own signature were not produced12. In short, the appellant submitted that in view of suppression and concealment of material facts on part of the respondents, they were not entitled to the equitable relief of injunction. Moreover, he had a prima facie case and the balance of convenience stood in his favour. Irreparable injury would be caused to him as the father of the minor children who would not be safe in the hands of the respondents13. The family court by its order dated 11th of June, 2007 vacated the interim order of injunction granted on 21st of April 2007. The Court found that the respondents had neither prima facie case nor balance of convenience in their favour, nor vacating the ex parte interim order would cause irreparable injury to them. It was also the finding of the family court that the respondents did not approach the Court with clean hands. The Court found that in support of their contention that Umme Asma died due to the assault cast upon by the appellant, the respondents had not been able to produce any material evidence; nor was any case filed against the appellant. This appears in contrast to their contention that after the death of Umme Asma, her relatives had enquired about the marks on her face which occurred when the appellant had hit her. If this was the case, the respondents would have initiated an enquiry much before, not when almost ten months had expired after the death of Umme Asma. This prolonged silence, according to the trial court, renders the version of the appellant probable that it is to wreck vengeance towards him who refused to marry the respondent no.3 that the entire proceedings had been launched. The death report produced by the appellant, on the other hand, supports the version of the appellant of bone cancer being the cause of his wifes death. The fact that he bore with all medical expenses is also supported by evidence. The appellant has also been able to produce the sale deed of the property which he claims to have purchased in his wifes name out of his love and affection for her14. The undertaking given by the respondents before Police Authorities with respect to the complaint filed against them by the appellant also strengthens the version of the appellant that as a matter of course, the children stayed with the appellant and that it was the respondents who took them away without his sanction. It is pertinent to note that the respondents did not produce the temporary order of injunction at the time they were asked to file the said undertaking to the Police Authorities. The various receipts produced by the appellant as evincing the expenses he incurred for his wife and children were also considered. Thus it was found that the respondents had no prima facie case15. The Family Court found the balance of convenience also leaning in favour of the appellant, who is admittedly the natural guardian of the children. The photographs produced by both the parties were considered as indicating the bond the children shared with both. It was found that they were also happy in the company of their step mother. Though Athiya had stated that she was not willing to go with her father, the Family Court felt that it could be no consequence as she was not old enough to form a mature opinion and was susceptible to tutoring. The fact that the son went to the appellant when he saw him in the Court premises indicated that the children were close to the appellant. Accordingly, balance of convenience was found tilting in favour of the appellant16. Irreparable injury will be caused to the father if he is denied interim custody as he is the natural guardian of the children, the care and concern for whom he had established in various ways. Keeping in view the fact that welfare of the children is the paramount consideration, it was noted that the respondent nos. 2 and 3 would get married and start living separately while respondent no.1 is an aged person. Therefore, the appellant was more competent and fit than all to take care of the children. In order not to deprive the children of the love and affection of their maternal relatives, the appellant had agreed to leave the children at the respondents place on every alternate Saturday and for five days at the beginning of the summer vacation which shows his magnanimity and generosity17. The contentions of the respondents were not supported by documentary evidence and, therefore, the Family Court was of the opinion that they had not approached the Court with clean hands. Hence, the equitable remedy of injunction could not be granted to them18. Therefore, by its order dated 11th of June, 2007, the Family Court vacated the ad-interim order of temporary injunction restraining the appellant from interfering with the custody of the children with the respondents19. Aggrieved by this order, the respondents filed a Writ Petition which came to be numbered as W.P. No. 9177 of 2007 before the High Court of Karnataka at Bangalore. Before the High Court, the respondents contended that the parties would be governed by Mohammaden Law which dictates that in the absence of the mother, maternal grand parents shall be the guardian of minor children. It was further contended that the second marriage of the appellant disentitles him to the custody of children. Further, when the children are capable of forming their opinion, they should be allowed to exercise their option with respect to which of the parties they would go with. The well being of the children which is the paramount consideration in matters of custody was not taken into account by the Family Court whose order is liable to be set aside on this count alone20. The appellant, in response to these submissions, contended that the High Court could not interfere with the findings of the Family Court unless serious infirmity is proven. The decisions cited by the respondents were distinguished on the ground that these decisions concerned findings that were recorded after a full fledged trial and not an order passed as an ad-interim relief granting custody to one of the parties21. On consideration of these arguments, the High Court by its order dated 8th of October 2007 had set aside the order of the Family Court by which it had vacated the interim order of injunction and passed the following directions:a. The impugned order is quashedb. The respondent father will have visiting rights and shall visit his two children on every Sunday between 9 a.m. and 5 p.m. The father is permitted to take out the children to any place of his and childrens choice and shall bring back the children to petitioners house. This arrangement shall continue pending disposal of the proceedings before the learned Family Judgec. Having regard to the sensitive issue involved i.e. as to the guardianship of the minor children, the learned Family Judge is directed to conclude the proceedings within six months from the date of receipt of the copy of this orderd. Any observation made during the course of this order is only for the purpose of considering as to where the children should stay during the pendency of the proceedings. It shall not be treated as a finding on the merits of the case. The learned Family Judge shall not be swayed by any of the observations made during the course of this order22. The High Court in its impugned judgment had held that while appointing the guardian or deciding the matter of custody of the minor children during the pendency of guardianship proceedings, the first and foremost consideration for the Court is the welfare of the children. The factors that must be kept in mind while determining the question of guardianship will apply with equal force to the question of interim custody. It was observed that the Family Court should have delved a little deeper into the matter and ascertained where the interest of the children lay, instead of recording abstract findings on questions of prima facie case, balance of convenience and irreparable injury23. The terms on which the appellant and his deceased wife were, the manner in which the respondents obtained the custody of the children are questions that should be determined during the course of trial24. Though when the childrens father is not unfit otherwise he shall be the natural guardian, a child cannot be forced to stay with his/her father. According to the High Court, merely because the father has love and affection for his children and is not otherwise shown unfit to take care of the children, it cannot be necessarily concluded that welfare of the children will be taken care of once their custody is given to him. The girl had expressed a marked reluctance to stay with her father. The High Court was of the opinion that the children had developed long standing affection towards their maternal grandfather, aunt and uncles. It will take a while before they develop the same towards their step mother. The sex of the minor girl who would soon face the difficulties of attaining adolescence is an important consideration, though not a conclusive one. She will benefit from the guidance of her maternal aunt, if custody is given to the respondents, which the appellant will be in no position to provide. Further, there is a special bonding between the children and it is desirable that they stay together with their maternal grandfather, uncles and aunt25. In case of custody of the minor children, the Family Law, i.e. the Mohammedan Law would apply in place of the Act. Considering the provisions under Section 353 of the Mohammedan Law, the High Court had held that the preferential rights regarding the custody of the minor children rests with the maternal grandparents. After making a doubtful proposition that in case of a conflict between personal law and welfare of the children the former shall prevail, the High Court held that in the case at hand there is no such conflict26. For the reasons aforementioned, the High Court by its impugned order set aside the order of the Family Court, Bangalore which vacated the interim order of injunction issued against the appellant27. It is this order of the High Court, which is challenged before us by way of special leave petition which on grant of leave has been heard by us in the presence of the learned counsel appearing on behalf of the parties.

Reasoning:
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