Transcription No. 14

                 At the time of death of their mother the children were left in custody of their paternal grandparents 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 decided the matter would be so detrimental 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 U.S.A. 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. 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. “We are convinced that the dislocation of Satpal, at this stage, from Allahabad, where he had grown up in sufficiently good surroundings, would not only impede his schooling, it may also cause emotional strain and depression on him.” After taking note of the marked reluctance on the part of 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 childrens 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 Satpal and, therefore, the order of the High Court giving exclusive custody to the father with visitation right to the mother deserves to be maintained.” The children have been in the lawful custody of the respondents from October, 2007. In the case of Rajpal Singh v. Sumesh Nagpal, it was argued before this Court by the Counsel that welfare of child should be seen. The learned counsel for the appellant has placed reliance on the case of Mohsin v. Reshama. 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. 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 court could not appoint any maternal relative as a guardian, even though the personal law of the minor might give preferential custody to her favour. As is evident, the afore-mentioned 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 a 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 afore-mentioned 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 over-ride this rule of Mohammedan Law and, hence, a prima facie case is found in favour of the respondents. 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 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. 2, 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 provide sufficient love and care for the children till the final disposal of the guardianship application.

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