Interim custody of minor

Constitutional petition against an order passed under S. 12 of the Guardians and Wards Act, 1890, for the grant of interim custody is maintainable because the remedy of appeal against such an order is not available, as per S. 14(3) of the Family Courts Act, 1964.

Section 12 of the Guardians and Wards Act, 1890, enacts the power to make interlocutory order for production of minor and interim protection of person and property.

Respondent (grandmother of the minor) instituted application for interim custody and visitation rights of minor girl, whereas the petitioner (mother of the minor) filed the application for rejection of the same on the ground of maintainability

Guardian Court rejected the application of petitioner

Contention of the petitioner was that the Family Courts Act, 1964, was promulgated as a special act for special class of people i.e. husband and wife in case of their custody

Validity

Although contention of the petitioner was correct but the Guardians and Wards Act, 1890, also dealt with the situation where only grandparents were contestants, therefore, the same would not stop the Guardian Court to adjudicate upon matter-in-hand

In the Family Court Act, 1964, the Schecule made under S. 5 thereof, prescribed "custody of the children" in clause (5), however, an amendment was made through Family Court (Amendment) Ordinance, 2002 and after " custody of children" the words "and the visitation rights of parents to meet them" were added

Application of the respondent (grandmother) was maintainable before the Guardian Court

Constitutional petition was dismissed, in circumstances.

Contention of the petitioner (mother of minor) was that only the parents could request for the visitation right of the minor as the 'grandmother' was not covered in the definition of 'parent'

Held, that the word 'parent' used in S. 5 and the Sched. of the Family Courts Act, 1964, was wider in sense and was not restricted to its literal meaning particularly when the grandchild was entitled to inheritance from the grandparent

Application of the respondent (grandmother) was maintainable before the Guardian Court

Constitutional petition was dismissed, in circumstances.

Respondent (grand-mother of the minor) instituted application for interim custody and visitation rights of minor girl, whereas the petitioner (mother of the minor) filed application for rejection of the same on the ground of maintainability

Guardian Court rejected the application of petitioner

Petitioner invoked constitutional jurisdiction of the High Court contending that only the parents could request for the visitation right of the minor as the 'grandmother' was not covered in the definition of 'parent'

Validity

Record revealed that parents of the minor got married to each other but , soon after the birth of minor, the divorce was effected

Intensity of estrangement was so high that a criminal case was got registered on the behest of father of the petitioner which though was later cancelled

Father of the minor was a foreign national, who came back after the birth of child to see new-born child and to reconcile but the efforts failed and he returned abroad after pronouncing divorce

Petitioner had referred to definition of the word 'parent' from dictionaries, which included adoptive parents, but such concept was not recognized in Islam

Keeping in view the fact in the present case that neither the real father of the minor had come forward with any definite plea nor the effort was made to implead him as a party, his tacit approval could be presumed

Proceedings before the Guardian Court were for the visitation right of the minor only, therefore, the application filed by the grandmother was competent

Constitutional petition dismissed, in circumstances.

Petitioner assailed order passed by Judge Guardian Court whereby his application for interim custody of minor was dismissed

Validity

Matter of interim custody could not be decided without examination of the parties and some material on record

Contention of petitioner that at the time of interim or final custody the wishes of minor were immaterial was contrary to the law as per provision of S.17(3) of Guardians and Wards Act, 1890, which provided that if the minor was old enough to form an intelligent preference, it could be considered by the court

Constitutional petition was dismissed.

During litigation between the parties such order or 'interim custody' could not be alleged / called as un-justified and / otherwise harsh and illegal

Any order passed under S.12 of Guardians and Wards Act, 1890, was not equivalent to an order passed under S.25 of Guardians and Wards Act, 1890

Latter order was to determine rights of parties with regard to 'regular custody' of a minor and that too only after taking into consideration the capacity / position of a party to either maintain a child and / or to provide love and affection to such child

Such like questions could only be decided in a 'final adjudication' of application under S.25 of Guardians and Wards Act, 1890

High Court declined to interfere in the order passed by Family Court with regard to interim custody as there was no 'infirmity' or 'illegality' in the order

Constitutional petition was dismissed, in circumstances.

When statute itself has taken away right of appeal against an 'interim order' then such order cannot be assailed / questioned / brought under attack in a Constitutional petition under the exercise of Constitutional jurisdiction of High Court.

Petitioner/mother assailed order of Family Court whereby the Court while disposing of application under S. 12 of Guardians and Wards Act, 1890 handed over the custody of two minor girls to their father

Validity

Both female minors aged about 7 and 5 years came within the right of hizanat bestowed to the mother under the law

Family Court ignored the relation of mother with the minors and did not even pass an order of meeting/visitation

Family Court based the impugned decision on the grounds that petitioner (mother) had no male relative in the city; that she did not own any house and that she had moved application to the school management for withdrawing the minors from school

Petitioner in her written statement had categorically given details of sources of income/funds she owned

Petitioner had moved an application in the minors' school for getting them admitted in another school nearer to her residence

Presumption drawn by Family Court about removal of minors from the jurisdiction of court was premature

Family Court had ample powers to restrain a party from initiating or taking any step/act contrary to the welfare of minors

High Court allowed the petition and directed Family Court to decide the application under S. 12 of Guardians and Wards Act, 1890 afresh in accordance with law, after hearing both the parties

Constitutional petition was disposed of accordingly.

Real parents have an inherent right to meet and visit their children.

Guardian Court though dismissed the application for custody of the grandmother but chalked out a schedule of her meeting with the minor

Petitioner/father contended that Appellate Court had wrongly modified meeting schedule by expanding/adding overnight stay of minor with his grandmother on 3rd Saturday of each month as she just wanted to poison the minor against him

Validity

Welfare of minor was prime consideration of the Court

In absence of mother of the minor, maternal grandmother had the right to see and meet the minor

Denial of such legal right would tantamount to deprive the minor from the love and affection of his maternal grandmother and the family of his deceased mother, which was against the welfare of the minor for the reason that minor needed love and affection of both of his paternal and maternal relations

Minor was not to be deprived of love and affection of either of the two blood relations and have maximum interaction with his maternal relations as well, as his permanent custody was with the father, otherwise the same could cause an estrangement in the mind of the child which could ultimately leave a vacuum in the development of his personality

Father was not to create hurdles in enabling the minor to develop a healthy relationship with his maternal side which could only be developed if he was allowed to spend a reasonable period of time with them

No illegality or infirmity having been noticed in the impugned order passed by the Appellate Court, constitutional petition was dismissed accordingly.

Petitioner/mother contended that Appellate Court had wrongly chalked out overnight stay of minor with his father/respondent as the same would affect his growth adversely and he was likely to confront some unpleasant situation there

Mother also apprehended removal of the minor out of territorial jurisdiction of the Court

Father contended that proper growth of the minor required love and affection of parents and Guardian Court had wrongly dismissed his prayer of meeting with his son out of Court premises

Validity

Welfare of minor was prime consideration before the Court, admittedly, respondent was father of the minor and being the natural guardian he had right of his supervision under the Islamic Law, therefore, on separation of the parents the minor could not be permanently deprived from the love and affection of either of the parents

Minor, in the present case, had crossed the age of six years, therefore, he should have maximum interaction with the father even if the custody was with the mother, otherwise, it may cause an estrangement in the mind of the child which may ultimately leave a vacuum in the accomplishment of his personality for deprivation of love, affection and company of his father

Court, in order to achieve such goal, was to make every possible effort to chalk out reasonable visitation schedule in friendly atmosphere

Meeting of the minor in the Court premises with the father was neither conducive nor effective and did not serve the purpose of meeting, therefore, welfare of the minor was in meeting with the father at his residence

Appellate Court had already imposed condition of submission of surety bonds by the father at the time of taking over custody of the minor which was sufficient to dispel the apprehension of the mother regarding removal of the minor from the territorial jurisdiction of the Court

No illegality or infirmity having been noticed in the impugned order passed by the Appellate Court, constitutional petition was dismissed accordingly.

Petitioner/mother contended that order of interim custody of minor being interlocutory in nature could only be challenged under constitutional jurisdiction of High Court

Respondent/father contended that matter of interim custody under Family Courts Act, 1964 was appealable before District Court

Validity

If order was interlocutory one which was not appealable then even constitutional petition was not maintainable

Provision of S. 47, Guardians and Wards Act,1890, provided that order under S. 12 of the Guardians and Wards Act, 1890 was appealable

Provisions of Guardians and Wards Act,1890 could not be read in isolation

Matters pertaining to guardianship would exclusively be triable by the Family Court created under the Family Courts Act, 1964 which was a later enactment than the Guardians and Wards Act, 1890; statute later in time would prevail upon the earlier

According to S.14(1) of the Family Courts Act, 1964 a decision given or a decree passed by Family Court would be 'appealable' in spite of the fact that S. 12 of Guardians and Wards Act, 1890 was not mentioned in S. 47 of the said Act

Appeal could be filed against order passed under S. 12 of Guardians and Wards Act, 1890, being a 'decision' given by Family Court and the same was not hit by subsection (3) of S. 14 of Family Courts Act, 1964 and the appeal would lie before the District Court if the Family Court was not presided by a District Judge or Additional District Judge

Impugned order passed by the Family Court being appealable before the District Court same could not be challenged under constitutional jurisdiction before the High Court

Constitutional petition was dismissed in circumstances.

Petitioner/mother contended that she be allowed to take ward to see his maternal uncles settled abroad whom ward is emotionally attached

Respondent/father contended that without adjudicating claim of custody of the minor mother had hatched conspiracy to shift the ward abroad

Validity

Mother failed to append the copy of passport and B-Form of minor as well as copy of invitation to visit United Kingdom

Father had placed on record the photocopy of passport of minor along with B-Form which established that mother was yet to apply for Visa of minor to visit United Kingdom while under the British Law it took at least 3 months to get visa

Mother had hardly any time left to apply for visa as summer vacation were going to end

Rights of the parties were yet to be adjudicated by the Court, therefore, allowing the mother to remove the custody of the minor from the jurisdiction of the Court was not called for

Constitutional petition was dismissed accordingly.

Paternal grandmother filed application for custody of two minors (one girl and a boy), wherein an application for temporary custody of minor boy aged one and half years was moved by the mother of minor, which was accepted by the Family Court

Validity

Petitioner paternal grandmother had alleged that mother of minor was insane and she had attempted thrice for poisoning the minor

Nothing was available on record in support of version of grandmother

Mother had more love and affection with her children than father or other relatives

Father of minor had divorced the mother of minors and contracted third marriage

Right of hizanat, of male child, in the present case, appertained to the mother, grandmother or so forth, until he (child) becomes independent

Both the courts below committed no jurisdictional error

Constitutional petition was dismissed accordingly.

Mother filed application for interim custody of minors which was dismissed by the Guardian Judge but Appellate Court accepted the said application

Validity

Guardian Judge was bound to do substantial justice in the case of interim custody of minor and should not act in harsh manner by keeping balance between the father and mother

High Court could modify the order or relief given by the courts below

Constitutional petition against the order of interim custody of minor was not maintainable

Guardian Judge was directed by High Court to proceed with the matter day to day and decide the same on merits within three months

Constitutional petition was dismissed in circumstances.

Father filed application for custody of minor girl wherein temporary custody during summer vacation was urged which was dismissed by the Family Court

Father was lawful guardian of his minor child and was ordinarily entitled to his custody provided such was for the welfare of the minor

Right of father to claim custody of minor was not an absolute right and he might disentitle himself to custody on account of his conduct

Custody of minor child, in the present case, was given to the applicant time and again but no complaint was available on record regarding misbehaviour or taken undue advantage of the court's orders

Father and mother both were working parents, therefore, had equal right to have temporary custody of minor

Applicant was depositing maintenance of the child regularly fixed by the Trial Court

Minor daughter was in her tender age and she required love and care of both the parents

Father was entitled to spend some time with her daughter at his house during summer vacations

Applicant had contracted second marriage, however his wife had filed her affidavit to the effect that she had love and affection for minor and would not cause harm to her

Father sought interim custody of minor during winter vacations which was granted but same was refused for summer vacations

Family Court, by refusing the temporary custody, misconstrued the application of father

Constitutional petition was allowed with certain modifications.

Order under S.12 of the Guardians and Wards Act, 1890 should not become the order passed under S.25 of the Act determining the rights of the parties with regard to custody of minor; difference between the two provisions must be kept in view

Questions as to whether mother would be in a position to maintain children and to provide love and affection to them were questions which would require evidence

Such questions could be decided only in final adjudication after recording of evidence

High Court, in exercise of its constitutional jurisdiction was not a court of appeal or revision

Jurisdiction of High Court to interfere on the point of fact was limited

Interlocutory order if did not suffer from any illegality, mala fide or was not in excess of jurisdiction or lack of exercise of jurisdiction or was not based on misreading, misconstruing or discarding of evidence and material on record, could not be challenged in constitutional jurisdiction

Trial Court, in the present case, had stepped into the merits of the case without recording of evidence

Impugned order was in excess of jurisdiction which was set aside

Case was remanded to the Trial Court for deciding application afresh in accordance with law

Constitutional petition was disposed of accordingly.

High Court as an interim measure in the interest and welfare of minor, while pending its final decision by Guardian Judge, could entrust custody of minor to a person holding lawfully his/her custody before its deprivation of the same.