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interim custody

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child custody =In normal course, natural parents cannot be deprived of visiting rights of their child. But, in the instant case, the approach of the respondents to have the custody of the minor ward is something different from that of a normal parents’ approach. The child was born on 25.04.2001. It is the case of the respondents that they left the child with the petitioners in the year 2004. But, the same is denied specifically by the petitioners and it is the case of the petitioners that on the 9th day after the birth, the minor ward was given to them and since then she is with them. Practically, the child has grown with the petitioners and is treating them as natural parents. Instead of seeking custody of their child through the competent court of law, it is clear that respondents made a futile attempt to have the custody forcibly, by making false allegations of kidnap and demand of money by the petitioners and obtained search warrant. Pursuant to such warrant, not only search was made in the house of the petitioners, but also in the School of the minor ward and she was taken by the Police from the School to the learned Magistrate. It appears, after enquiring the wishes of the child and her grandparents, petition was closed. Thereafter, the said order was also confirmed in Criminal Revision Case filed by the respondents referred hereinabove. Even thereafter, when the respondents filed a Writ of Habeas Corpus before this court, the same too ended in dismissal. In view of such steps taken against the petitioners and the minor ward, it appears, a sort of fear is developed in her mind and thereby she is even refusing to spare any time with them. Such attitude of the child was clearly discernible when she was examined by this court. When her wishes were enquired, she started crying inconsolably. Therefore, it cannot be said that she was tutored by the petitioners herein not to go with the respondents. For the aforesaid reasons, I am of the considered view that allowing visiting rights of the minor ward by the respondents, as ordered by the court below, will definitely have an adverse impact on the welfare of the minor ward and therefore I hold that the respondents are not entitled for any visiting rights of the minor ward unless a congenial atmosphere is developed.

  HON’BLEMR. JUSTICE R. SUBHASH REDDY Civil Revision Petition No.1681 of 2011 16.12.2011 Mohd. Haleem @ Sajid and another Dr.Shafiuddin Ali Ahmed and another Counsel for the petitioner:Sri Mirza Safiulla Baig Counsel for respondents: Sri P. Keshava Rao Order: This civil revision petition, under Article 227 of the Constitution of India, is filed by the … Continue reading

release of crime vehicles = In Sunderbhai Ambalal Desai Vs. State of Gujarat[1] the Apex Court has laid down that in case of vehicles seized during investigation, they should not be allowed to deteriorate by being kept unused and unattended in the premises of the police stations. Therefore, the vehicle has to be entrusted to the interim custody of the petitioner subject to appropriate conditions.

            HON’BLESRI JUSTICE RAJA ELANGO             CRIMINAL PETITION No.10146 OF 2011 ORDER: This Criminal Petition is filed by the petitioner, under Section 482 of Cr.P.C., with a prayer to direct the Station House Officer, Jangaon P.S., Warangal District, to forthwith release Auto bearing registration No.AP 36X 7037 seized in connection with Crime … Continue reading

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 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, … Continue reading

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