Athar Hussain vs Syed Siraj Ahmed and Others [SUPREME COURT OF INDIA, 05 Jan 2010]
Family & Personal - Mohammedan Law, s. 353 - Guardian and Wards Act, 1890, ss. 12 and 19 - Code of Civil Procedure , 1908, O. 39 r. 1 and 2 - Interim Custody of minor children - Appellant married daughter of respondent No. 1 - Two children were born out of wedlock - After death of mother, respondents initiated proceeding u/ss. 7, 9 and 17 of the Act - During pendency of proceeding, an application was filed for interim protection of persons and properties of minor children and for order of injunction restraining appellant from interfering or disturbing custody of two children till disposal of application filed u/ss. 7, 9 and 17 of Act - Family Court passed an ex parte interim order restraining appellant from interfering with custody of children - On appeal, Family Court vacated ad interim order of temporary injunction - Writ Petition was filed against said order - HC held that in case of the custody of minor children, Family Law, i.e. Mohammedan Law would apply in place of the Act - Considering provisions u/s. 353 of the Mohammedan Law, HC held that the preferential rights regarding custody of minor children rests with maternal grandparents - HC set aside order of Family Court by which it had vacated interim order of injunction - Hence, present appeal - Held, while deciding question of interim custody, Court must be guided by welfare of children since s. 12 of Act empowers Court to make any order as it deems proper - No doubt, unless father is proven to be unfit, application for guardianship filed by another person cannot be entertained - However, question of custody is different from question of guardianship - Question of guardianship can be independent of and distinct from that of custody in facts and circumstances of each case - As far as matters of custody are concerned, Court is not bound by bar envisaged u/s. 19 of Act - As far as question of custody is concerned, personal law governing minor girl dictates her maternal relatives, especially her maternal aunt, shall be given preference - In present case, at this stage respondents should be given interim custody of minor children till disposal of proceedings filed u/ss. 7, 9 and 17 of the Act as prima facie case was found in their favour - Irreparable injury would be caused to children if they, against their will, are uprooted from their present settings - Further, balance of convenience lies in favour of granting custody to maternal grandfather, aunt and uncle - Order of Family Court vacating its injunction order set aside - Appeal dismissed.
