ATHAR HUSSAIN versus SYED SIRAJ AHMED & ORS.

Citation: [2010] 1 S.C.R. 49 · Decided: 05-01-2010 · Supreme Court of India · Bench: TARUN CHATTERJEE · Disposal: Dismissed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2010] 1 S.C.R. 49 
ATHAR HUSSAIN 
v. 
SYED SIRAJ AHMED & ORS. 
(Civil Appeal No. 11 of 2010) 
JANUARY 05, 2010 
[TARUN CHATTERJEE AND V.S. SIRPURKAR, JJ.] 
Guardian and Wards Act, 1890 - ss. 7, 9, 17 and 12 -
Interim custody of minor Muslim children - Death of mother 
A 
B 
of minor children, girl aged 13 years and boy aged 5 years -
C 
Re-marriage of father - Application by maternal relatives for 
appointment as guardian and interim custody of minor 
children till disposal of application u/ss. 7, 9 and 17 - Family 
court granting interim injunction against father restraining him 
from interfering with the custody - Vacation of interim order-
D 
Set aside by High Court - Interim custody granted to maternal 
relatives till the disposal of the proceedings - On appeal, held: 
Custody is distinct from guardianship - In matters of custody, 
welfare of children is the sole consideration - Personal law 
governing custody of minor girl dictates that her maternal E 
relatives, especially maternal aunt, shall be given preference, 
thus, no reason to override the rule of Mohammedan Law -
Prima facie case and balance of convenience in favour of 
granting custody to maternal relatives - Children would suffer 
irreparable injury if they are uprooted from their present F 
settings against their will - Thus, order of High Court modified 
to the extent of visitation rights granted to father - Code of 
Civil Procedure, 1908 - 0. 39 r.1 and 2 - Child welfare -
Mohammedan Law. 
Appellant married the daughter of respondent no. 1, G 
as per the Islamic rites and customs. Two children were 
born out of the wedlock. Appellant's wife died after 
thirteen years of marriage and within a year he married 
again. 
Respondent 
no.1-maternal 
grandfather, 
49 
H 
50 
SUPREME COURT REPORTS 
[2010] 1 S.C.R. 
A respondent nos. 2, 3 and 4-maternal aunt and uncles of 
the minor children, girl aged 13 years and boy aged 5 
years, initiated proceedings u/ss. 7, 9 and 17 of the 
Guardian and Wards Act, 1890 for appointment as 
guardians. They also filed application u/s. 12 of the Act r/ 
8 
w Or. 39 r. 1 and 2 CPC praying for interim protection of 
the persons and properties of the minor children and also 
for an injunction order restraining the appellant from 
interfering or disturbing the custody of the minor 
children. Family Court passed an interim order 
C restraining the appellant from interfering with the custody 
of the children with the respondent. Appellant challenged 
the order. Family court vacated the interim order of 
injunction. High Court set aside the said order and 
passed certain directions. Hence the present appeal. 
D 
Dismissing the appeal, the Court 
HELD: 1.1. Section 12 of the Guardian and Wards 
Act, 1890 empowers courts to "make such order for the 
temporary custody and protection of the person or 
E property of the minor as it thinks proper." In matters of 
custody, welfare of the children is the sole and single 
yardstick by which the Court shall assess the 
comparative merit of the parties contesting for custody. 
l'herefore, while deciding the question of interim custody, 
F the court must be guided by the welfare of the children 
since s. 12 empowers the Court to make any order as it 
deems proper. [Para 32] [65-E-F] 
1.2 With regard to guardianship, the prima facie case 
lies in favour of the father as u/s. 19 of the Act, unless the 
G father is not fit to be a guardian, the Court has no 
jurisdiction to appoint another guardian. 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 
H or the High Court found him so. However, the question 
ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS. 
51 
of custody is different from the question of guardianship. A 
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. The question of guardianship can be independent B 
of and distinct from that of custody in facts and 
circumstances of each case. [Paras 33 and 35] [65-G-H; 
66-A-B; 67-B] 
Rosy Jacob v. Jacob A.Chakramakka/ (1973) 3 $.C.R. 
918; Mt. Siddiqunnisa Bibi v. Nizamuddin Khan and Ors. AIR C 
1932 All 215, referred to. 
1.3. The Court shall determine whether, in 
proceedings relating to interim custody, there are 
sufficient and 

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