The 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/s 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 praying for interim protection of the persons and properties of the minor children and also for an injunction 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 set aside the said order of injunction. High Court set aside the said order and passed certain directions. Hence the present appeal was made by the appellant in this Court. Sections 12 of the Guardian and Wards Act, 1890 empowers court to “make such order for the temporary custody and protection of the person of 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, 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 it empowers the Court to make any order as it deems proper. 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. The 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. 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. 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. 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. 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 have delved a little deeper into the matter and ascertained where the interest of the children lay, instead of recording abstract findings questions of prima facie case, balance of convenience and irreparable injury. 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. 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 unfit to take care of the children, the welfare of children cannot be guaranteed.(800)
