Athar Hussain vs Syed Siraj Ahmed & Ors

3. The appellant is the father of the minor children in whose respect interim custody and guardianship have been sought 1 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 uncles.

4. 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 same.

5. 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 2 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 :-

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 appellant.

11. It is for the vengeance of the appellant's 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 produced. 6

12. 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 respondents.

14. 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 8 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 case.

18. 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 respondents.

23. 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 trial.

26. For the reasons aforementioned, the High Court by its impugned order set aside the order of the Family Court, 15 Bangalore which vacated the interim order of injunction issued against the appellant.

36. Keeping in mind the paramount consideration of welfare of the children, we are not inclined to disturb their custody which currently rests with their maternal relatives as the scope of this order is limited to determining with which of the contesting parties the minors should stay till the disposal of the application for guardianship.

What is important for us to note from these observations is that the Court shall determine whether, in proceedings relating to interim custody, there are sufficient and compelling reasons to persuade the Court to change the custody of the minor children with immediate effect.

51. We find it fit, however, to modify the visitation rights granted to the appellant. He shall be allowed to visit the children on Saturdays as well between 9 am and 5 pm.

52. The order of the High court is modified to the extent indicated above, and the order of the Family Court dated 11th of June, 2007 vacating its injunction order is set aside. The Family Court is hereby directed to dispose of the case relating to the guardianship of the two children after adducing evidence by both the parties (both oral and documentary) at an early date, preferably within six months from the date of supply of a copy of this order to it.

53. We, however, make it clear that the observations made in the order of the High Court as well as by this Court, if there be 33 any, shall not be taken to be final while deciding the original application filed under Sections 7, 9 and 17 of the Act and the Family Court shall be at liberty to proceed with the disposal of the said proceeding independently of any of the observations made by this Court in this judgment.

54. The appeal is thus dismissed. There will be no order as to costs.

55. In view of the above judgment, the application for impleadment becomes infructuous and is dismissed as such.