Wednesday, January 27, 2010

Supreme Court on Custody of Children

Athar Hussain Appellant versus Syed Siraj Ahmed and others Respondents
Date of Decision(mm/dd/yy): 1/5/2010.Civil Appeal No. 11 of 2010

Judge(s): Hon'ble Mr. Justice Tarun Chatterjee and Hon'ble Mr. Justice V.S. Sirpurkar.

Guardian and Wards Act, 1890 — Section 12 — CPC, 1908 — Order 39 Rule 1 and 2 — application filed under — for interim protection of the persons and properties of the minor children and also restraining the appellant from interfering or disturbing the custody of two children till the disposal of the application filed under Sections 7, 9 and 17 of the Act — Family Court passed an ex parte interim order restraining the appellant from interfering with the custody of the two children of the appellant — appellant filed application for vacation of interim order of injunction passed against him — Family Court found the balance of convenience leaning in favour of the appellant and vacated the ad-interim order of temporary injunction — High Court set aside the order of the Family Court vacating the interim order of injunction — appeal — held the question of custody distinct from guardianship. Further held that the personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given preference, thus, no reason to override the rule of Mohammedan Law — irreparable injury will be caused to the children if they, against their will, are uprooted from their present settings — order of the High Court giving the interim custody of the minor children to the respondent till the disposal of the proceedings, modified to the extent of the visitation rights granted to the appellant and the order of the Family Court vacating its injunction order set aside — appeal dismissed — no costs.

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