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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 – 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 – 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 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 settings against their will – Thus, order of High Court modified to the extent of visitation rights granted to father – Code of Civil Procedure, 1908 – O. 39 r.1 and 2 – Child welfare – Mohammedan Law. Appellant married the daughter of respondent no. 1, 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, 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/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 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. =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 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. Therefore, while deciding the question of interim custody, 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 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 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 with another friend or relative as serving his/her interest better. The question of guardianship can be independent 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.Chakramakkal (1973) 3 S.C.R. 918; Mt. Siddiqunnisa Bibi v. Nizamuddin Khan and Ors. AIR 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 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] 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 currently rests with their maternal relatives is not disturbed 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] 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 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 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 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] 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, 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 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 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 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 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. [Paras 43 and 44] [70-G-H; 71- A-E] 2.4. Till the final disposal of the application for 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 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 & 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. 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 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-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 respondents to file the application for guardianship, is a question of fact which is yet to be proved. [Para 48] [73-B-D] 2.7. In the opinion of High Court, the minor girl who was then was 10 to 11 years old, was capable of making 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 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, 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 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-A-F] Gaurav Nagpal v.Sumedha Nagpal (2009) 1 SCC 42, distinguished Rafiq v. Bashiran and Ors AIR 1963 Rajasthan 239; B.N. Ganguly v. C.H. Sarkar AIR 1961 MP 173; R.V. Srinath Prasad v. Nandamuri Jayakrishna AIR 2001 SC 1056; 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 SCC 413, referred to. 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 AIR 1932 All 215 Referred to. Para 34 AIR 2001 SC 1056 Referred to. Para 37 AIR 2008 SC 2262 Referred to. Para 38 (2009) 1 SCC 42 Distinguished. Para 40 AIR 2004 UTR 1 Referred to. Para 44 AIR 1961 J & K 5 Approved. Para 46 (2008) 9 SCC 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 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 Respondent.

REPORTABLE


IN THE SUPREME COURT OF INDIA
Children

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 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO.11 OF 2010
 (Arising out of SLP ) No. 24148 of 2007)

Athar Hussain. -----Appellant

 Versus

Syed Siraj Ahmed & Ors. ----Respondents

 JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

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 respondents.

3. The appellant is the father of the minor children in whose

respect interim custody and guardianship have been sought

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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

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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 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

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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 Asme.

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,

 4
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 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

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 token

 5
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 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 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.

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 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

 7
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

wife's 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 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 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.

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

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 appellant.

 9
16. 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

generosity.

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 granted to them.

 10
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.

19. 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 alone.

 11
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

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 of

injunction and passed the following directions:

 a. The impugned order is quashed.

 b. 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 children's

 choice and shall bring back the children to

 petitioner's house. This arrangement shall continue

 pending disposal of the proceedings before the

 learned Family Judge.

 12
 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

 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

 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.

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 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

 13
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.

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.

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 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

 14
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

aunt.

25. 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 conflict.

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.

27. 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.

28. It was the contention of the appellant before us that the

Act will apply to the present 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 the case of Rafiq v. Bashiran

and 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.Ganguly v. C.H.Sarkar, [AIR

1961 MP 173] it was contended by the learned counsel for the

 16
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

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

High Court had stayed the order of the Family Court vacating

the injunction order. While the respondents 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

stepmother. 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 cases of Rafiq v. Bashir (supra) and

B.N. Ganguly (supra) are not applicable to the facts of this

case.

 17
31. We have heard the learned counsel for both the parties

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 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

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 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

 18
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 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 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 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 the wife who may
 also be equally affectionate towards her children and
 otherwise equally free from blemish, and, who, in

 19
 addition, because of her profession and financial
 resources, may be in a position to guarantee better
 health, education and maintenance for them."

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:

 "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. 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 of the child by the father
 continues in spite of the fact that she is under the
 care of her female relation, as the burden 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 of

each case.

 20
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.

37. The appellant placed reliance on the case of R.V.

Srinath Prasad v. Nandamuri Jayakrishna [AIR 2001 SC

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 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 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 to the interest of the minors that their

 21
 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 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

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

Court in another decision cited by the learned 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, 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 the

boy to live with his mother, the Court further observed:

 22
 "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 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
 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 in his custody for a long time and that a sudden change

in custody would traumatize the child. This Court did not find

favour 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 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

 23
their favour. Hence, the consideration 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 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 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 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 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 [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.

 24
Quoting from Tyabji's Mahomedan Law, Third Edition, Section

236 (p. 275) the Court observed:

 "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

 2. Father's mother

 3. Mother's grandmother howsoever high

 4. Father's grandmother howsoever high

 5. Full sister

 6. Uterine sister

 7. Daughter of full sister, howsoever low.

 8. Dauther of uterine sister, howsoever low.

 9. Full maternal aunt, howsoever high.

 10.Uterine maternal aunt, howsoever high.

 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,

 25
the 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

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 respondents.

44. Further, the balance of convenience lies in favour of

granting custody to the maternal grandfather, aunt and uncle.

 26
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.

 27
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 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

 28
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

 29
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

 30
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

 31
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 Pandey's 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

 32
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.

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.

 .............................J.
 [Tarun Chatterjee]

New Delhi; ............................J.
January 05, 2010. [V.S.Sirpurkar] 34
35
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Discussion

2 thoughts on “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 – 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 – 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 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 settings against their will – Thus, order of High Court modified to the extent of visitation rights granted to father – Code of Civil Procedure, 1908 – O. 39 r.1 and 2 – Child welfare – Mohammedan Law. Appellant married the daughter of respondent no. 1, 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, 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/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 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. =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 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. Therefore, while deciding the question of interim custody, 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 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 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 with another friend or relative as serving his/her interest better. The question of guardianship can be independent 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.Chakramakkal (1973) 3 S.C.R. 918; Mt. Siddiqunnisa Bibi v. Nizamuddin Khan and Ors. AIR 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 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] 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 currently rests with their maternal relatives is not disturbed 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] 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 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 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 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] 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, 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 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 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 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 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. [Paras 43 and 44] [70-G-H; 71- A-E] 2.4. Till the final disposal of the application for 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 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 & 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. 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 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-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 respondents to file the application for guardianship, is a question of fact which is yet to be proved. [Para 48] [73-B-D] 2.7. In the opinion of High Court, the minor girl who was then was 10 to 11 years old, was capable of making 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 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, 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 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-A-F] Gaurav Nagpal v.Sumedha Nagpal (2009) 1 SCC 42, distinguished Rafiq v. Bashiran and Ors AIR 1963 Rajasthan 239; B.N. Ganguly v. C.H. Sarkar AIR 1961 MP 173; R.V. Srinath Prasad v. Nandamuri Jayakrishna AIR 2001 SC 1056; 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 SCC 413, referred to. 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 AIR 1932 All 215 Referred to. Para 34 AIR 2001 SC 1056 Referred to. Para 37 AIR 2008 SC 2262 Referred to. Para 38 (2009) 1 SCC 42 Distinguished. Para 40 AIR 2004 UTR 1 Referred to. Para 44 AIR 1961 J & K 5 Approved. Para 46 (2008) 9 SCC 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 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 Respondent.

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