JUDGMENT
Chandrakantaraj Urs, J.
1. This matter coming up for orders, by consent of Counsel for parties, is taken up for final disposal and disposed of by the following order.
2. The appellant before us, Sanna Shetty, is employed as a Police Constable and presently working at Bangalore. The appellant was married to respondent Shanthamma on 17-5-1985. Thereafter, out of their wedlock, a child by name Divya was born on 22-4-1986. Soon after the birth of the child, differences between husband and wife surfaced and ultimately the respondent Shanthamma left her husband and has been staying with her parents at Chickballapur. She left her husband together with the child. However, it is alleged by her that on 10-4-1987, the appellant-husband came and forcibly took away the child from her custody and the child was, at the relevant time, only 2 years and 5 months old. Thereafter, certain criminal proceedings were initiated against the husband by the wife which has since culminated in the acquittal of the appellant-husband and others. It was in that circumstance, a Petition was filed before the Civil Judge, Chickballapur under Section 25 of the Guardian and Wards Act in C.M.C.1 of 1988 seeking custody of the child. However, in the said Petition under Section 25, an application I.A.1 was filed seeking interim custody of the child. By order dated 29th August, 1989, the learned Civil Judge, Chickballapur has directed the custody of the child to be given to the mother pending disposal of the main Petition. Aggrieved by the same, the appellant has approached this Court in this Miscellaneous First Appeal inter alia contending that the Court-below ought not have to have granted the main relief itself in the guise of granting interim relief.
3. Before we examine the validity of this contention, we must point out, we tried our best to bring the parties together to put an end to the litigation for the sake of the welfare of the child which is, as on to-day, just about four years old. It is also submitted from the Bar that the child has been in the custody of the parents of the appellant before us for a considerable time. We even spoke to the child and we found that she is more familiar with her father and her grand parents through the father than the mother. Whatever that may be, the fact nevertheless remains, parties to-day reported that there is no possibility of settlement between husband and wife and that the wife is not witling to resume her marital obligations with her husband, the appellant. In these circumstances, we have to dispose of the appeal strictly on merits.
4. It is well-settled principle that interim relief as far as possible, should not be granted if such interim relief is the main relief asked for in a legal proceeding. There may be exceptions. But this does not appear to fall within the exceptional cases.
5. The Guardian and Wards Act generally governs all citizens within the Union of India. Hindu Minority and Guardianship Act Is specially applicable to the Hindus. Parties, before us are Hindus and therefore are governed by both the Acts. Under Section 13 of the Hindu Minority and Guardianship Act, 1956, the paramount consideration of the Court in deciding as to the custody of the child is the welfare of the child. The Court may arrive at such a decision only on cogent evidence being led by parties as to the suitability of either of the parent being the better custodian of the child for its welfare and well-being.
6. We do not want to say anything more than this so that it may not prejudice the mind of the trial-Court. We therefore think it proper in this case to set aside the order because it is decided only on the affidavits filed by parties and direct to dispose of the petition on a priority basis within three months from the date of receipt of this order or of a certified copy of this order, without granting adjournments to either of the parties, invite evidence in respect of the issues joined and dispose of the matter on merit.
Subject to above observations, this appeal is allowed and the order under appeal is set aside.