Mrs. Sarah Vijayalakshmi, Venugopal and Sarala vs Dr. J.D. Devadatta

S. Nagamuthu, J.—Challenge in this appeal is to the order made in Application No. 1249 of 2009 in O.P. No. 687 of 2009 dated

30.08.2010 wherein, the learned Single Judge has granted interim injunction against the Appellants restraining therein from interfering with the

custody of minor child ''Sharon Rose'' who is under the Respondents care.

The facts of the case are as follows:

The first Appellant is the biological mother of the female child in question.

The Appellants 2 & 3 are the parents of the first Appellant. The Respondent is a Christian by religion whereas, the Appellants claim that they are

Hindus and the child is also a Hindu. The father of the child is no more. While so, according to the Respondent, the child was given in adoption to

him and his wife by the first Appellant by means of a registered Deed of Adoption dated 22.11.2000. It is the case of the Respondent that all along

the minor child has been in his care and custody and he has been bringing her up. It is his further case that the child is now studying in a school at

Vellore and the Respondent is taking full care of her education, safety, health etc. On the basis of Deed of Adoption, the Respondent has filed

O.P. No. 687 of 2009 seeking an order appointing him as guardian of the person and property of minor ''Sharon Rose'' and the said original

petition is pending.

During the pendency of the said case, the Respondent filed Application No. 1249 of 2009 before the learned Single Judge of this Court praying

for an interim injunction restraining the Appellants herein from interfering with the custody of the minor child under the Respondent''s care during

the pendency of O.P. No. 687 of 2009.

The main contention of the Appellants is that in a petition for appointment of guardian for a minor child, an interlocutory application for injunction

against the mother to restrain her from in any manner disturbing the custody of the child at the instance of a stranger is not at all maintainable. The

learned Counsel for the Appellants would submit that the Deed of Adoption said to have been executed, upon which reliance is placed by the

Respondent, is void under law and therefore, the Respondent is an utter stranger to the child and so, the custody of the child should not be allowed

to be with the Respondent. The learned Counsel would further, while reiterating the grounds raised in the appeal, submit that the learned Single

Judge ought to have directed the custody of the child to be with the first Appellant . He would further add that allowing the child to be in the

custody of the Respondent would be detrimental to the interest and welfare of the child. For all these reasons, the learned Counsel would submit

that the order of the learned Single Judge needs to be interfered with.

Per contra, the learned Senior Counsel appearing for the Respondent would submit that though technically, an order of temporary injunction to

restrain the first Appellant to see the child cannot be granted, nevertheless, the order impugned in this appeal should be construed as an order u/s

12 of the Guardians and Wards Act, 1890. The learned Counsel would submit that the validity of the document or the factum of the adoption

cannot be gone into in this appeal as it is the matter to be gone into only in the original petition. He would further submit that the child has been

continuously in the custody of the Respondent for several years and the same cannot be denied by the first Appellant. He would further submit that

the learned Single Judge had an occasion to hear the child personally and from out of the same, it came to light that the child is interested only to be

in the custody of the Respondent. He would further submit that taking the child now from the custody of the Respondent would be detrimental to

the welfare of the child as the same would drastically affect the mind, health and education of the child. He would further add that while deciding

the interim custody of a minor child, it is not material as to whether the person in whose custody the child is now kept has got legal right to have

custody and instead, it is only the welfare of the child which is paramount.

The learned Counsel on either side have relied on few judgments of this Court as well as the Hon''ble Supreme Court about which, we would

make reference at the appropriate stage of this judgment.

In respect of the maintainability of interlocutory application for injunction, as rightly pointed out by the learned Counsel appearing for the

Appellants, under Order XXI of the Madras High Court Original Side Rules, which governs all proceedings under the Guardians and Wards Act,

1890, there is no express provision empowering this Court to entertain an interlocutory application for granting any order of injunction, as it has

been done in the instant case. But the learned Counsel would submit that as per Order I Rule 3 of the Madras High Court Original Side Rules,

those provisions of CPC which are not inconsistent with the Madras High Court Original Side Rules shall be applicable to the proceedings before

the High Court. The Original Side Order I Rule 3 reads as follows:

''R.3. Except to the extent specifically provided for by these rules, the provisions of the Code shall apply to all proceedings. The rules and forms

mentioned in Appendix III hereto and all previous rules and forms, and the provisions of the Code, so far as such provisions are inconsistent with

these rules and forms, are hereby repealed and superseded and the following rules orders and

The learned Senior Counsel would submit that u/s 94 C.P.C., this Court is therefore, empowered to grant an order of injunction in order to

prevent the ends of justice from being defeated. Therefore, according to the learned Counsel, the learned Single Judge was right in entertaining the

interlocutory application and in granting the order of injunction. In view of the fact that there is no inconsistency between Section 94 C.P.C., and

the provisions of the Madras High Court Original Side Rules, we are also of the view that as per Section 94(c) C.P.C., this Court can very well

entertain an interlocutory application for grant of temporary injunction.

The next question which arises for consideration is as to whether such an order of injunction could be granted against the biological mother of

the child even before the validity of the adoption deed has not been decided by this Court in the main petition. When such a question was posed,

the learned Senior Counsel appearing for the Respondent would submit that the order impugned in this appeal may be construed to be an order of

protection of the minor child passed u/s 12 of the Act and not an order of injunction in its strict legal sense. Of course, we find force in the said

argument. It is needless to point out that while passing an interim order u/s 12 of the Act, the paramount consideration of the Court will be only the

welfare of the minor child. In this regard, the learned Senior Counsel has relied on a judgment of the Hon''ble Supreme Court in Nil Ratan Kundu

and Another Vs. Abhijit Kundu, wherein, the Hon''ble Supreme Court, after having elaborately dealt with the law on the subject and after having

made a thorough survey of several other judgments of the Hon''ble Supreme Court, in paragraph No. 52, has held as follows:

''52........A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In

selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child.''

In view of the above well settled law, this Court, perhaps, cannot be much concerned about the procedure followed by the learned Single

Judge in passing the order. As has been repeatedly held by the Hon''ble Supreme Court, the procedure is only a hand maid of justice and that itself

is not the end. As held by the Hon''ble Supreme Court, in the above case, the paramount consideration is only the welfare and well being of the

child.

The said judgment came up for consideration by the Hon''ble Supreme Court again in Athar Hussain Vs. Syed Siraj Ahmed and Others, . In

the said case, the grand parents of the minor child filed petition u/s 7,9 and 17 of the Act before the Family Court. During the pendency of the said

proceedings, an application was filed u/s 12 of the Act r/w Order 39 Rules 1 and 2 of CPC The Family Court in the said interlocutory application,

passed an exparte interim order of injunction restraining the father of the children from interfering with the custody of the two children. Seeking to

vacate the same, the father of the minor children, filed a petition before the Family Court under Order 39 Rule 4 CPC The Family Court vacated

the interim order of injunction on the ground that there was neither prima facie case made out nor balance of convenience in favour of the grand

parents nor vacating the interim order would cause irreparable injury to them.

Aggrieved over the said order, the grand parents filed a writ petition before the High Court of Karnataka. The High Court by its order, set

aside the order of the Family Court by which it had vacated the interim order of injunction and passed an order giving visitation right to the father.

It was against the same, the matter came up before the Hon''ble Supreme Court. After having considered the rival contentions, the Hon''ble

Supreme Court in paragraph No.29, has held as follows:-

''29. 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.''

As extracted above, the Hon''ble Supreme Court directed the custody of the children to the grand parents. While passing the impugned order,

the Hon''ble Supreme Court had to elaborately deal with the scope of Section 12 of the Act in paragraph No. 30 of the said judgment which reads

as follows:

''30... 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;'' (emphasis supplied) In matters of custody, as well settled by judicial precedents, the welfare of the children is the sole

and single yardstick by which the court shall assess the comparative merit of the parties contesting for the custody. Therefore, while deciding the

question of interim custody, we must be guided by the welfare of the children since Section 12 empowers the court to make any order as it deems

proper.''

Thus, the Hon''ble Supreme Court has reiterated the well settled law regarding the paramount consideration to be had by a Court while passing

interim order regarding the custody of the minor children. While discussing about the welfare of the child, the Hon''ble Supreme Court has held that

the question of custody is different from the question of guardianship. In other words, one may continue to be the natural guardian, but still, he may

not be given custody of the minor children as in the opinion of the Court, handing over custody of the minor children to the guardian himself may

not be in the interest of the minor children.

In paragraph No. 31 of the said judgment, it has been held as follows:

''31. We are mindful of the fact that, as far as the matter of guardianship is concerned, the prima facie case lies in favour fo the father as u/s 19 of

the Guardians and Wards Act, unless the father is not fit to be a guardian, the Court has no jurisdiction to appoint another guardian. It is also true

that the 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.''

In the case on hand, it is the main contention of the Appellants that though the Respondent is not legally entitled to be the guardian, the learned

Single Judge has allowed him to keep the custody of the child which according to them is not in the interest of the minor child. We are not

persuaded by the said argument. As it has been held by the Hon''ble Supreme Court, as extracted above, in this appeal, we are not called upon to

decide the question of entitlement for guardianship. Per contra, we are called upon to decide the question of interim custody of the child which shall

be done by having regard to the welfare of the child as the paramount consideration. Therefore, whether the Respondent would ultimately succeed

in getting himself appointed as a guardian or not and whether the document in question is valid under law and whether there has been a valid

adoption or not are all matters which cannot be adjudicated upon in this appeal.

It is not in dispute that the child in question has been all along in the custody of the Respondent. The child is studying in a school at Vellore. She is

brought up and educated only by the Respondent. When a specific query was raised to the learned Counsel for the Appellants as to whether the

first Appellant has been paying at least tuition fees for the education of the child, the answer came in the negative. Therefore, it is crystal clear that

the Respondent has been keeping the child in his custody and has been bringing her up well by giving good education. At this juncture, we may

refer to the order passed by the learned Single Judge while granting an exparte interim order regarding the child wherein, the learned Judge has

held as follows:

''8........''Though the first Respondent is the biological mother, I am of the view that in the interests and welfare of the minor, the education of the

minor should not be disturbed at this stage. Therefore, a limited injunction is granted restraining the Respondents from interfering with the education

and upbringing of the minor daughter.''

As a matter of fact, as seen from the order of the learned Judge, the child who was then aged 13 years was produced before the learned

Judge. The learned Judge had the benefit of interviewing the child in open Court. In the impugned order, the learned Judge has made an

observation that the child is a grown up girl and she is able to answer without any hesitation to the questions posed by the Court; she has

categorically stated that she is willing to live under the care and custody of the Respondent herein. She has further stated that she had seen the first

Appellant in the Church when she went to the Church and she had not even wished her mother. It is in these circumstances, the learned single

Judge was of the view that it would be in the interest and welfare of the child that she be continued in the custody of the Respondent. In our

considered opinion we do not find any material on record to take a different view.

The learned Counsel for the Appellants would submit that in the case cited supra, the controversy was between the persons who are closely

related to the minor children whereas, in the instant case, the Respondent is a total stranger to the child. Therefore, according to him, it would not

be proper to allow the custody of the child in the hands of such a total stranger. This argument does not persuade as all. As we have already

stated, the Respondent cannot be stated as a total stranger. He is now supported by the adoption deed. As we have already stated, whether the

deed is valid and whether the adoption is valid or not cannot be gone into in this appeal. When it is not in controversy that the child has been all

along in the custody of the Respondent for about 10 years, when the child is studying in a school under the care and custody of the Respondent,

more particularly, the child herself has expressed her willingness to be in the custody of the Respondent, as rightly held by the learned Single Judge,

it would not be in the interest of the child, at this stage to disturb the custody. Since it is only an interim measure, having regard to the welfare of the

child, we are not convinced that the custody of the child should be immediately changed to the hands of the first Appellant.

Lastly, the learned Counsel for the Respondent would rely on a judgment of this Court in K. Jayaraj v. Eva Mary Elezabeth (2009(6) MLJ

1060) wherein a learned Single Judge of this Court in paragraph No. 19 has held as follows:

''19. There is no evidence let in, in this case by the Respondent to show that the Petitioner being the father had dis-entitled himself from having the

custody of the child. It is needless to state that there is no substitute for the child being brought up with its biological parents. Before the custody

being entrusted with any other person, the real parents'' custody must be explored. Only such care and concern alone can bring up the child in a

natural environment. The Courts have reiterated that what was the best interest of the child must be taken into account in deciding the custody

matter. In the present case, the dispute is not between the father and the mother or between the father and the near relatives of the mother.

The dispute is between the natural guardian being father and a third party, who got the child''s custody by an outsider and who was not legally

competent to do it.''

In our considered opinion, the view taken by the learned Single Judge in the said case has got no application to the facts of the present case

because, that was a case where, upon evidence recorded, permanent custody of the child was decided, whereas, in the instant case, what is being

dealt with is the question of interim custody and therefore, the principles followed in the said case have no application to the instant case.

At the same time, the learned Single Judge has not granted permission for the Appellants to visit the child. In paragraph No. 13 of the order,

the learned Judge has held that the first Appellant can apply for visitation right separately in the Original Petition and if filed so, the Court will

consider and pass suitable orders after hearing both parties. Regarding this observation made by the learned Single Judge, we are not able to

convince ourselves to agree with the same.

So long as the question of guardianship has not been finally decided and so long as the custody of the child as a permanent measure has not

been decided, in our considered opinion, it would be in the interest of justice and in the interest of the chid as well as the Appellants who are the

mother, grand parents respectively, to give them visitation right to see the child. Denial of this right to the Appellants would not be proper. In Athar

Hussain v. Syed Siraj Ahmed and Ors. (cited supra) the Hon''ble Supreme Court has also granted such visitation right to the father of the children.

Therefore, we are inclined to grant such visitation right to the Appellants.

In view of the foregoing discussions, the order of the learned Single Judge is modified and the appeal is allowed in part in the following terms:

(i) The child in question shall be under the care and custody of the Respondent till the disposal of the O.P. No. 687 of 2009.

(ii) The Respondent shall take utmost care for the child and assist for her development in all respects.

(iii) The Appellants shall be permitted to visit the child on all Saturdays and Sundays between 9.00 a.m. and 5.00 p.m. During such visit, if the child

expresses her willingness to go with the Appellants, the Appellants may take the child for outing between 9.00 a.m. and 5.00 p.m., and that the

Appellants shall ensure the safety and security of the child.

(iv) Both the parties should not cause any harm, either mental or physical, to the child.

(v) If any difficulty is experienced in complying with this order, the parties are at liberty to approach the learned Single Judge for appropriate

further directions. No costs.