ATHAR HUSSAINversusSYED SIRAJ AHMED & ORS.

                       [2010] 1 S.C.R. 49


                       ATHAR HUSSAIN                                A
                              v.
                SYED SIRAJ AHMED & ORS.
                (Civil Appeal No. 11 of 2010)
                      JANUARY 05, 2010
                                                                    B
   [TARUN CHATTERJEE AND V.S. SIRPURKAR, JJ.]

       Guardian and Wards Act, 1890 - ss. 7, 9, 17 and 12 -
 Interim custody of minor Muslim children - Death of mother
 of minor children, girl aged 13 years and boy aged 5 years -       C
 Re-marriage of father - Application by maternal relatives for
 appointment as guardian and interim custody of minor
 children till disposal of application u/ss. 7, 9 and 17 - Family
court granting interim injunction against father restraining him
 from interfering with the custody - Vacation of interim order-     D
 Set aside by High Court - Interim custody granted to maternal
relatives till the disposal of the proceedings - On appeal, held:
 Custody is distinct from guardianship - In matters of custody,
welfare of children is the sole consideration - Personal law
governing custody of minor girl dictates that her maternal          E
relatives, especially maternal aunt, shall be given preference,
thus, no reason to override the rule of Mohammedan Law -
Prima facie case and balance of convenience in favour of
granting custody to maternal relatives - Children would suffer
irreparable injury if they are uprooted from their present          F
settings against their will - Thus, order of High Court modified
to the extent of visitation rights granted to father - Code of
Civil Procedure, 1908 - 0. 39 r.1 and 2 - Child welfare -
Mohammedan Law.

     Appellant married the daughter of respondent no. 1, G
as per the Islamic rites and customs. Two children were
born out of the wedlock. Appellant's wife died after
thirteen years of marriage and within a year he married
again. Respondent no.1-maternal grandfather,
                            49                           H
    50      SUPREME COURT REPORTS              [2010] 1 S.C.R.


A respondent nos. 2, 3 and 4-maternal aunt and uncles of
  the minor children, girl aged 13 years and boy aged 5
  years, initiated proceedings u/ss. 7, 9 and 17 of the
  Guardian and Wards Act, 1890 for appointment as
  guardians. They also filed application u/s. 12 of the Act r/
8 w Or. 39 r. 1 and 2 CPC praying for interim protection of
  the persons and properties of the minor children and also
  for an injunction order restraining the appellant from
  interfering or disturbing the custody of the minor
  children. Family Court passed an interim order
C restraining the appellant from interfering with the custody
  of the children with the respondent. Appellant challenged
  the order. Family court vacated the interim order of
  injunction. High Court set aside the said order and
  passed certain directions. Hence the present appeal.

D        Dismissing the appeal, the Court

       HELD: 1.1. Section 12 of the Guardian and Wards
  Act, 1890 empowers courts to "make such order for the
  temporary custody and protection of the person or
E property of the minor as it thinks proper." In matters of
  custody, 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.
  l'herefore, while deciding the question of interim custody,
F the court must be guided by the welfare of the children
  since s. 12 empowers the Court to make any order as it
  deems proper. [Para 32] [65-E-F]

        1.2 With regard to guardianship, the prima facie case
  lies in favour of the father as u/s. 19 of the Act, unless the
G father is not fit to be a guardian, the Court has no
  jurisdiction to appoint another guardian. Respondents,
  despite the voluminous allegations leveled against the
  appellant have not been able to prove that he is not fit to
  take care of the minor children, nor has the Family Court
H or the High Court found him so. However, the question
  ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.            51


of custody is different from the question of guardianship. A
Father can continue to be the natural guardian of the
children; however, the considerations pertaining to the
welfare of the child may indicate lawful custody with
another friend or relative as serving his/her interest
better. The question of guardianship can be independent B
of and distinct from that of custody in facts and
circumstances of each case. [Paras 33 and 35] [65-G-H;
66-A-B; 67-B]

    Rosy Jacob v. Jacob A.Chakramakka/ (1973) 3 $.C.R.
918; Mt. Siddiqunnisa Bibi v. Nizamuddin Khan and Ors. AIR C
1932 All 215, referred to.

     1.3. The Court shall determine whether, in
proceedings relating to interim custody, there are
sufficient and compelling reasons to persuade the Court D
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. [Paras 37 and 38] [68-B-C]
                                                            E
     R. V. Srinath Prasad v. Nandamuri Jayakrishna AIR 2001
SC 1056; Mausami Moitra Ganguli v. Jayant Ganguli AIR
2008 SC 2262, referred to.

    2.1. Keeping in mind the paramount consideration of
welfare of the children, the custody of the children which F
currently rests with their maternal relatives is not
disturb~d 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. [Para 36] [67-B-C]                            G

     2.2. The children have been in the lawful custody of
the respondents from October, 2007. It has the sanction
of the order of the High Court granting interim custody
of the children in their favour. Hence, the consideration H
    52     SUPREME COURT REPORTS             [2010] 1 S.C.R.


A that the custody of the children should not undergo an
  immediate change prevails. The question with whom they
  remained during the period from the death of their mother
  till the institution of present proceedings is a matter of
  dispute between the parties and a conclusion on the
B same cannot be reached without going into the merits of
  the matter. At any rate, the children are happy and are
  presumably taken care of with love and affection by the
  respondents, judging from the reluctance on part of the
  girl child to go with her father. She might attain puberty
C at any time. High Court rightly observed, that it may not
  be in the interests of the children to separate them from
  each other. Hence, the status quo is not disturbed as the
  only concern is with the question of interim custody at
  this stage. [Para 40] [68-G-H; 69-A-E]

D      2.3. Regarding the matters of custody, the Court is
  not bound by the bar envisaged u/s. 19 of the Act. The
  personal law governing the minor girl dictates her
  maternal relatives, especially her maternal aunt, shall be
  given reference. As such regarding the interim custody,
E there is no reason to override the rule of Mohammedan
  Law and, hence, a prima facie case is found in favour of
  the respondents. The balance of convenience lies in
  favour of granting custody to the maternal grandfather,
  aunt and uncle. In matters of custody of children, their
F welfare shall be the focal point. Once the focus is shifted
  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.
  Respondent no.3 stated that she has no intention to get
G married and her plea that she had resigned from her job
  as a technical writer to take care of the children remains
  uncontroverted. Hence, the respondents will be in a
  position to provide sufficient love and care for the
  children until the disposal of the guardianship
H application. The second marriage of the appellant,
    ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.           53
                                                            ,.
though a factor that cannot disentitle him to the custody A
of the children, yet is an important factor to be taken into
account. It may not be appropriate 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, B
2007, when the ultimate outcome of the guardianship
proceedings is still uncertain. [Paras 43 and 44) [70-G-H;
71-A-E]

     2.4. Till the final disposal of the application for C
guardianship, 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. There is no conflict between the welfare D
of the children and the course of action suggested by
personal law to which they are subject. [Paras 45 and 46)
[72-B-C-E]

     Hassan Bhatt v. Ghulam Mohamad Bhat AIR 1961 J &            E
K 5, approved.

     2.5. Respondent no. 1 is an old person aged about
72 years. 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. F
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. No views can be G
expressed on the correctness of these averments. These
matters must be gone into when the Family Court
disposes of the application for guardianship filed by the
respondents and not at this stage. [Para 47) [72-F-H; 73-
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    54      SUPREME COURT REPORTS                [2010] 1 S.C.R.


A      2.6. As far as the denial of the interim custody of
  children to the respondents on the ground that they had
  not approached the Court with clean hands, such cannot
  be inferred. The alleged refusal on part of the appellant
  to marry respondent no.3 which is said to have led the
B respondents to file the application for guardianship, is a
  quest; .... ;1 of fact which is yet to be proved. [Para 48] [73-
  8-DJ

         2.7. In the opinion of High Court, the minor girl who
    was then was 10 to 11 years old, was capable of making
C   intelligent preference. It may be true that 11 years is a
    tender age and her preference cannot be conclusive. But
    as only the question of interim custody is dealt with, there
    is no reason why the preference of the elder child shall
    be overlooked. The Family Court had considered fact that
D   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,
E   weight must be given to the preference that daughter had
    expressed. However, the visitation rights granted to the
    appellant is modified. He shall be allowed to visit the
    children on Saturdays as well between 9 am and. 5 pm.
    The order of the High Court is modified and the order of
F   the Family Court vacating its injunction order is set aside.
    The Family Court is 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. [Paras 50, 51 and 52] [74-
G   A-F]
         Gaurav Nagpa/ v.Sumedha Nagpal (2009) 1 SCC 42,
    distinguished

     Rafiq v. Bashiran and Ors AIR 1963 Rajasthan 239; B.N.
H Gangu/y v. C.H. Sarkar AIR 1961 MP 173; R. V. Srinath
  ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.               55


Prasad v. Nandamuri Jayakrishna AIR 2001 SC 1056; A
Mausami Moitra Ganguli v. Jayant Ganguli AIR 2008 SC
2262; Bal Krishna Pandey v. Sanjeev Bajpayee AIR 2004
UTR 1; Nil Ratan Kundu and Anr. vs. Abhijit Kundu (2008) 9
sec 413, referred to.
                                                               8
                     Case Law Reference:

  AIR 1963 Rajasthan 239       Referred to.   Para 28

  AIR 1961 MP 173              Referred to.   Para 29, 49

  (1973) 3 S.C.R. 918          Referred to.    Para 33         c
  AIR 1932 All 215             Referred to.    Para 34

  AIR 2001 SC 1056             Referred to.    Para 37

  AIR 2008 SC 2262             Referred to.    Para 38
                                                               D
  (2009) 1 sec 42              Distinguished. Para 40

  AIR 2004 UTR 1               Referred to.    Para 44

  AIR 1961 J & K 5             Approved.       Para 46
                                                               E
  (2008) 9 sec 413             Referred to.    Para 48

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11
of 2010.

    From the Judgment & Order dated 8.10.2007 of the High      F
Court of Karnataka at Bangalore in Writ Petition No. 9177 of
2007.

    S. Balaji, B.M. Arun, Madhusmita Bora for the Appellant.

    Nalini Chidambaram, Sunieta Ojha, Vikas Mehta for the      G
Respondent.

    The Judgment of the Court was delivered by

    TARUN CHATTERJEE, J. 1. Leave granted.
                                                               H
                                                         •
    56      SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A      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,
B 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 respondents.

       3. The appellant is the father of the minor children in whose
  respect interim custody and guardianship have been sought for.
C 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
D 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
E 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
F 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
G 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
H custody of two children till the disposal of the application filed
  ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.                    57
           [TARUN CHATIERJEE, J.]
under Sections 7, 9 and 17 of the Act. The case that was made A
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 8
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 pa rte
interim order restraining the appellant from interfering with the C
custody of the two children of the appellant.

      7. 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       D
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       E
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         F
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 Jespondents is to gain the
property that the appellant had purchased in favour of Umme         G
As me.

     8. 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. H
    58       SUPREME COURT REPORTS                  (2010) 1 S.C.R.


A   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
B   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
c   of April, 2007 on which day they produced the copy of the
    interim order to the appellant.

       9. 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
D the same.

       10. 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
E 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
F 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
G name of his daughter.

       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
H the Court were taken when the appellant himself took the
  ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.                     59
           [TARUN CHATIERJEE, J.]
respondents on an excursion along with his family in his own         A
car. The mark sheets produced by the respondents bore forged
signatures of the appellant whereas the documents bearing his
own signature were not produced.

     12. In short, the appellant submitted that in view of
                                                               8
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 C
would not be safe in the hands of the respondents.

       13. 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 D
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 E
 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 F
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 G
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 wife's death. The fact that he bore with
all medical expenses is also supported by evidence. The
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   60       SUPREME COURT REPORTS                   [2010] 1 S.C.R.


A appellant has also been able to produce the sale deed of the
  property which he claims to have purchased in his wife's name
  out of his love and affection for her.

        14. The undertaking given by the respondents before
  Police Authorities with respect to the complaint filed against
8
  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
C 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.
D
         15. 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
E 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
F 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 appellant. .

         16. Irreparable injury will be caused to the father if he is
<3 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
H respondent no.1 is an aged person. Therefore, the appellant
  ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.                  61
           [TARUN CHATTERJEE, J.]
was more competent and fit than all to take care of the children. A
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 generosity.                             B

      17. 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 C
granted to them.

     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.                  D

      19. Aggrieved by this order, the respondents filed a Writ
Petition which came to be numbered as W.P. No. 9177 of2007
before the High Court of Karnataka at Bangalore. Before the
High Court, the respondents contended that the parties would E
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 F
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 alone.
                                                                  G
      20. 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 H
    62         SUPREME COURT REPORTS                [2010] 1 S.C.R.


A   recorded after a full fledged trial and not an order passed as
    an ad-interim relief granting custody to one of the parties.

          21. 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
8
    of injunction and passed the following directions:

          a.     The impugned order is quashed.

          b.     The respondent father will have visiting rights and
c                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 children's
                 choice and shall bring back the children to
                 petitioner's house. This arrangement shall continue
D                pending disposal of the proceedings before the
                 learned Family Judge.

          c.     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
E                proceedings within six months from the date of
                 receipt of the copy of this order.

          d.    Any observation made during the course of this
                order is only for the purpose of considering as to
F               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 order.
G        22. 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
H   mind while determining the question of guardianship will apply
  ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.                    63
           [TARUN CHATIERJEE, J.]
.with equal force to the question of interim custody. It was A
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 injury.                                          B

     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.
                                                                    c
      24. Though when the children's 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 D
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 e
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 F
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 aunt.                            ·

     25. In case of custody of the minor children, the Family G
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 H
    64      SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A   in case of a conflict between personal law and welfare of the
    children theiormer shall prevail, the High Court held that in the
    case at hand there is no such conflict.

        26. For the reasons aforementioned, the High Court by its
    impugned order set aside the order of the Family Court,
8
    Bangalore which vacated the interim order of injunction issued
    against the appellant.

      27. It is this order of the High Court, which is challenged
  before us by way of special leave petition which on grant of
C leave has been heard by us in the presence of the learned
  counsel appearing on behalf of the parties.

        28. It was the contention of the appellant before us that the
  Act will apply to the present case because there is a conflict
0 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 the case of Rafiq v. Bashiran and
E ors, [AIR 1963 Rajasthan 239]. The Rajasthan High Court in the
  cited case held that where the provisions of the personal law
  are in conflict with the provisions of the Guardians and Wards
  Act the latter shall prevail over the former.

          29. Relying on the case of B.N. Gangu/y v. C.H.Sarkar,
F   [AIR 1961 MP 173] it was contended by 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.

      30. It was argued by the learned counsel on behalf of
G 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, 2006 as the
H High Court had stayed the order of the Family Court vacating
   ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.                    65
            [TARUN CHATTERJEE, J.]
the injunction order. While the respondents had been complying       A
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 stepmother. In contrast,
respondent no. 3, contrary to the apprehensions expressed by
the appellant has stated on record that she had no intention to      8
marry and would devote her life towards the welfare of the
children. Respondents further asserted that the cases of Rafiq
v. Bashir (supra) and B.N. Ganguly (supra) are not applicable
to the facts of this case.

      31. We have heard the learned counsel for both the parties     C
and examined the impugned order 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   D
filed under Sections 7, 9 and 17 of the Act. Reasons are as
follows:

      32. Section 12 of the Act empowers courts to "make such
order for the temporary custody and protection of the person E
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 F
custody, we must be guided by the welfare of the children since
Section 12 empowers the Court to make any order as it deems ·
proper.

     33. We are mindful of the fact that, as far as the matter of
guardianship is concerned, the prima facie case lies in favour       G
of the father as under Section 19 of the GWC Act, unless the
father is not fit to be a guardian, the Court has no jurisdiction
to appoint another guardian. It is also true that the respondents,
despite the voluminous allegations leveled against the
appellant have not been able to prove that he is not fit to take     H
    66       SUPREME COURT REPORTS                   (2010] 1 S.C.R.


A care of the minor children, nor has the Family Court or the High
  Court found him so. However, the question of custody is different
  from the question of guardianship. Father can continue to be
  the natural guardian of the children; however, the considerations
  pertaining to the welfare of the child may indicate lawful custody
B with another friend or relative as serving his/her interest better.
  In the case of Rosy Jacob v. Jacob A. Chakramakkal, ((1973)
  3 S.C.R. 918], keeping in mind the distinction between right to
  be appointed as a Guardian and the right to claim custody of
  the minor child, this Court held so in the following oft-quoted
c words:
         "Merely because the father loves his children and is not
         shown to be otherwise undesirable cannot necessarily lead
         to the conclusion that the welfare of the children would be
         better promoted by granting their custody to him as against
D        the wife who may also be equally affectionate towards her
         children and otherwise equally free from blemish, and, who,
         in addition, because of her profession and financial
         resources, may be in a position to guarantee better health,
         education and maintenance for them."
E
        34. In the case of Mt. Siddiqunnisa Bibi v. Nizamuddin
    Khan and Ors., [AIR 1932 All 215], which was a case
    concerning the right to custody under Mohammaden Law, the
    Court held:
F
         "A question has been raised before us whether the right
         under the Mahomedan law of the female relation of a minor
         girl under the age of puberty to the custody of the person
         of the girl is identical with the guardianship of the person
         of the minor or whether it is something different and distinct.
G        The right to the custody of such a minor vested in her
         female relations, is absolute and is subject to several
         conditions including the absence of residing at a distance
         from the father's place of residence and want of taking
         proper care of the child. It is also clear that the supervision
H        of the child by the father continues in spite of the fact that
 ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.                        67
          [TARUN CHATIERJEE, J.]
    she is under the care of her female relation, as the burden         A
    of providing maintenance for the child rests exclusively on
    the father."

     35. Thus the question of guardianship can be independent
of and distinct from that of custody in facts and circumstances
                                                                        8
of each case.

     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         C
contesting parties the minors should stay till the disposal of the
application for guardianship.

     37. The appellant placed reliance on the case of R. V.
Srinath Prasad v. Nandamuri Jayakrishna [AIR 2001 SC                    D
1056]. 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 grandparents, this        E
Court held:

     "The Division Bench appears to have lost sight of the
     factual position that the time of death of their mother the
     children were left in custody of their paternal grand
     parents with whom their father is staying and the attempt          F
     of the respondent no.1 was to alter that position before the
     application filed by them is considered by the Family Court.
     For this purpose it was very relevant to consider whether
     leaving the minor children in custody of their father till the
     Family Court decides the matter would be so detrimental            G
     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 USA and
     that it is alleged that he is having an affair with another lady
     are, in our view, not sufficient to come to the conclusion         H
    68       SUPREME COURT REPORTS                  [2010) 1 S.C.R.


A        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 and compelling
8
  reasons to persuade the Court to change the custody of the
  minor children with immediate effect.

       38. Stability and consistency in the affairs and routines of
  children is also an important consideration as was held by this
C Court in another decision cited by the learnP-d counsel for the
  appellant in the case of Mausami Moitra Ganguli v. Jayant
  Ganguli, [AIR 2008 SC 2262). This Court held:

                "We are convinced that the dislocation of Satyajeet,
D        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."

       39. After taking note of the marked reluctance on part of
E the boy to live with his mother, the Court further observed:

               "Under these circumstances and bearing in mind the
         paramount consideration of the welfare of the child, we are
         convinced that child's interest and welfare will be best
F        served if he continues to be in the custody of the father. In
         our opinion, for the present, it is not desirable to disturb
         the custody of Master Satyajeet and, therefore, the order
         of the High Court giving his exclusive custody to the father
         with visitation rights to the mother deserves to be
G        maintained."

       40. The children have been in the lawful custody of the
  respondents from October, 2007. In the case of Gaurav Nagpal
  v. Sumedha Nagpal, [(2009) 1 SCC 42), it was argued before
  this Court by the father of the minor child that the child had been
H in his custody for a long time and that a sudden change in
  ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.                   69
           [TARUN CHATTERJEE, J.]

custody would traumatize the child. This Court did not find favour A
with this argument. This Court observed that the father of the
minor child who retained the custody of the child with him by
flouting Court orders, even leading to institution of contempt
proceedings against him, could not be allowed to take
advantage of his own wrong. The case before us stands on a B
different footing. The custody of the minor children with the
respondents is lawful and has the sanction of the order of the
High Court granting interim custody of the children in their
favour. Hence, the consideration that the custody of the children
should not undergo an immediate change prevails. The question      c
with whom they remained during the period from the death of
their mother till the institution of present proceedings is a matter
of dispute between the parties and we are not in a position to
reach a conclusion on the same without going into the merits
of the matter. At any rate, the children are happy and are D
presumably taken care of with love and affection by the
respondents, judging from the reluctance on part of the girt child
to go with her father. She might attain puberty at any time. As
the High Court has rightly observed, it may not be in the interests
of the children to separate them from each other. Hence, at this E
juncture, we are not inclined to disturb the status quo, as we
are only concerned with the question of interim custody at this
stage.

     41. The learned counsel for the appellant has placed
reliance on the case of Rafiq v. Smt. Bashiran and Another F
[supra]. In this case, the High Court had set aside the order of
the Civil Judge granting the custody of the child to her mother's
paternal aunt, while the father was not proven to be unfit. Quoting
from Tyabji's Mahomedan Law, Third Edition, Section 236 (p.
275) the Court observed:                                            G

    "The following persons have a preferential right over the
    father to the custody of (sic) minor girl before she attains
    the age of puberty.

      1.    Mother's mother                                        H
    70          SUPREME COURT REPORTS               [2010] 1 S.C.R.


A         2.     Father's mother

          3.     Mother's grandmother howsoever high

          4.     Father's grandmother howsoever high

B         5.     Full sister

          6.     Uterine sister

          7.     Daughter of full sister, howsoever low.

c        8.      Dauther of uterine sister, howsoever low.

          9.     Full maternal aunt, howsoever high.

          10.    Uterine maternal aunt, howsoever high.

D         11.    Full paternal aunt, howsoever high.

       42. However, the High Court of Rajasthan held that in the
  light of Section 19 which bars the Court from appointing a
  guardian when the father of the minor is alive and not unfit, the
E Court could not appoint any maternal relative as a guardian,
  even though the personal law of the minor might give
  preferential custody in her favour.

       43. As is evident, the aforementioned decision concerned
  appointment of a guardian. No doubt, unless the father is
F 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
G 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
H question of interim custody, we see no reason to override this
  ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.                   71
           [TARUN CHATTERJEE, J.] ·
rule of Mohammedan Law and, hence, a prima facie case is          A
found in favour of the respondents.

      44. 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
                                                                    8
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 C
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. rhe D
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 . E
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 F
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 G
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 H
    72      SUPREME COURT REPORTS                  [2010) 1 S.C.R.


A 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
8
  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.
c
        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
D 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
E 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
F 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
G 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
H when the Family Court disposes of the application for
  ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.                   73
           [TARUN CHATIERJEE, J.]
guardianship filed by the Respondents, and not at this stage.       A

     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             8
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        C
say that w~ 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 sec 413] this Court had enumerated certain         D
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 ruJes of evidence or            E
    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."                                    F

     49. The learned counsel for the appellant again relied on
a decision of 8.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         G
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       H
    74       SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A 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
8 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 Pandey's case (supra). But as we are not dealing
  with the question of guardianship, but only with the issue of
C 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
0 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.

       51. We find it fit, however, to modify the visitation rights
E 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
F 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.
G
       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 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
H Family Court shall be at liberty to proceed with the disposal of
 ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS.                 75
          [TARUN CHATIERJEE, J.]
the said proceeding independently of any of the observations    A
made by this Court in this judgment.

     54. The appeal is thus dismissed. There will be no order
as to costs.
                                                                8
    55. In view of the above judgment, the application for
impleadment becomes infructuous and is dismissed as such.

N.J.                                      Appeal dismissed.