SARAH VIJAYALAKSHMI Vs. DR J D DEVADATTA

JUDGEMENT

(1.) CHALLENGE in this appeal is to the order made in Application No. 1249 of 2009 in O.P. No. 687 of 2009 dated 30.8.2010 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 respondent " s care.

(2.) THE facts of the case are as follows:- THE first appellant is the biological mother of the female child in question. THE appellants 2 and 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.

(3.) 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 under Section 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.