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 father. The sex of the minor girl who would soon face the difficulties of attaining adolescence is an important consideration, though not a conclusive one. She will benefit from the guidance of her maternal aunt, if custody is given to the respondent, which the appellant will be in no position to provide. Further, there is a special bonding between the children and it is desirable that they stay together with their maternal grandfather, uncles and aunt. 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. For the reasons aforementioned, the High Court by its impugned order set aside the order of the Family Court, Bangalore which vacated the interim injunction issued against the appellant. It is this order of the High Court, which is challenged before us by way of special leave petition which on grant of leave has been heard by us in the presence of the learned counsel appearing on behalf of the parties. It was the contention of the appellant before us that the Act will apply to the 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 a case of Rajasthan. The Rajasthan High Court in the cited case held that where the provisions of personal law are in conflict with the provisions of Guardians and Wards Act, the latter shall prevail over the former. Relying on the case, it was contended 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. 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 step-mother. In contrast, respondent no. 3, contrary to the apprehensions expressed by the appellant has stated on record that she had no intention to marry and would devote her life towards the welfare of the children. Respondents further asserted that the cited cases are not applicable to the facts of this case. We have heard the learned counsel for both the parties and examined the impugned 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. 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. This Court had observed in this decision that custody orders by their nature can never be final; however, before a change is made it must be proved to be in the paramount interest of the children. In that decision, while granting interim custody to the father as against the maternal grand-parents, this Court held that “the Division Bench appears to have lost sight of the factual position. (800 words)
