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 respondent, which the appellant will be in no position to provide.
Further,100 there is a special
bonding between the children and it is desirable that they stay together with
their maternal grandfather,120
uncles and aunt.
In
case of custody of the minor children, 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 Court200
held that in the case at hand there is no such conflict. For the
reasons afore-mentioned, the High Court by its impugned order set
aside the order of the Family Court, Bangalore which vacated the interim
injunction issued against240
the appellant. 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. It was the contention of the appellant before us
that the Act will apply to the present300
case because there is a conflict between the preferential guardian in Mohammedan
Law and the Act. It was pointed out that while deciding the custody of the
minor children, the welfare of the children had to be taken into consideration
and that it was guaranteed by the Act. They have placed their reliance on a
case of Rajasthan. The Rajasthan360
High Court in the cited case held that where the provisions of personal law are
in conflict with the provisions of Guardians and Wards Act, the latter shall
prevail over the former.
Relying
on the case, it was contended by400
the learned counsel for the appellant that there is a presumption that
parents will be able to exercise good care in the welfare of their
children. It was argued by the learned counsel on behalf of respondents
that the impugned order warrants no interference. Before passing the impugned
order, the learned Judge had spent over one hour with the children to ascertain
their preferences. The children have been living with the respondents since
their mother’s death in June, 2006480
as the High Court had stayed the order of the Family Court vacating the injunction
order. While the respondents500
had been complying with the visitation rights granted to the appellant, the
children were not happy with the treatment meted out to them during the time
they spent with their father and step-mother. in contrast, respondent no. 3,
contrary to the apprehensions expressed by the appellant has stated on record that
she had no intention to marry and would devote her life towards the welfare of
the children. Respondents further asserted that the cited cases are not
applicable to the facts of this case.
We
have heard the learned counsel for both the parties and examined the
impugned order600 of the High
Court and also the orders passed by the Family Court. After considering the
materials on record and the impugned order, we are of the view that at this
stage the respondents should be given interim custody of the minor children
till the disposal of the proceedings filed under Sections 7, 9 and 17 of the
Act. 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 of700 the children is
the sole and single yardstick by which the Court shall assess the
comparative merit of the parties720
contesting for custody. This Court had observed in this decision that custody
orders by their nature can never be final; however, before a change is made, it
must be proved to be in the paramount Interest of the children. In
that decision, while granting interim custody to the father as against the
maternal grand-parents, this Court held that the Division Bench appears to have
lost sight of the factual position.
At
the time of death of their mother, the children800 were left in custody of their paternal
grandparents with whom their father is staying and the attempt of the
respondent no. 1 was to alter that position before the application filed by
them is considered by the Family Court. For840
this purpose, it was very relevant to consider whether leaving the
minor children in custody of their father till the Family Court decided the
matter would be so detrimental to the interest of the minors that their
custody should be changed forthwith. The observations that the father is facing
a criminal case, that he mostly resides in U.S.A. and900 that it is alleged that he is
having an affair with another lady are, in our view, not sufficient to
come to the conclusion that custody of the minors should be changed
immediately. 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 and960
compelling reasons to persuade the Court to change the custody of the minor
children with immediate effect. Stability and consistency in the
affairs and routines of children is also an important consideration as was held
by this Court in another1000
decision cited by the learned counsel for the appellant. We are convinced that
the dislocation of Satpal, at this stage, from Allahabad, where
he has grown up in sufficiently good surroundings, would not only impede
his schooling, it may also cause emotional strain and depression on
him.” After taking note of the marked reluctance on part of the boy to live
with his mother, the Court further observed; “Under these circumstances and
bearing in mind the paramount consideration of the1080 welfare of the child, we are convinced
that child’s interest and welfare will be best served if he continues to1100 be in the custody of the father. In
our opinion, for the present, it is not desirable to disturb
the custody of Master Satpal: and, therefore, the order of the High Court
giving his exclusive custody to the father with visitation right to the mother
deserves to be maintained.” The children have been in the lawful custody of the
respondents from October, 2007. In the case of Rajpal Singh v. Sumesh
Nagpal, it was argued before this Court by the counsel that welfare of the
child should be seen.1191
