Judgment : 1. In this Letters Patent Appeal, the parents of two minor Muslim girls are quarreling as between themselves for the guardianship of the person and custody of the said minor girls. Though in the petition filed before the first Court guardianship or the properties of the minor girls was also asked for, there are no properties of the minor girls to be administered and hence the controversy centered around only the guardianship of the person and custody of the minor girls. The initiative for guardianship for the person and custody of the minor girls was taken by the mother, the respondent herein. She succeeded before the first Court. The father, the appellant herein, preferred C.M.A. No. 851 of 1989 to this Court and that came to be considered by a learned single Judge of this Court and he found no warrant for interference with the decision of the first Court and dismissed the Civil Miscellaneous Appeal. The learned single Judge directed the father, the appellant herein, and his second wife by name Habeebunnissa to hand over the minor girls to the mother, the respondent herein, on or before 19.4.1991. This Letters Patent Appeal is directed against the judgment of the learned single Judge and has been preferred by the father. 2. When the Letters Patent Appeal came up for admission on 12.4.1991, Mr. S. Sundaresan took notice for the mother. We deemed fit to summon the presence before us of the minor girls to find out their attitude; and we directed the mother and the second wife of the father, who is also his power agent to be present before us. The matter was adjourned to be heard today. The matter has been taken up today. We have heard the submissions of Mr. V. Sairam, learned counsel for the father and Mr. S. Sundaresan learned counsel for the mother. We are disposing of the Letters Patent Appeal on merits. 3. Certain facts could not be lost sight of for the purpose of our reaching a proper decision on the issue. The couple seemed to have had no problem upto 1982. The father was and is away from India for a considerable length of time. According to the father, he divorced the mother of the minor girls on 24.2.1982, because he found her leading an immoral life with one Nazirudeen. The couple seemed to have had no problem upto 1982. The father was and is away from India for a considerable length of time. According to the father, he divorced the mother of the minor girls on 24.2.1982, because he found her leading an immoral life with one Nazirudeen. This case of the father is not being admitted by the mother. The father would further say that he married Habeebunnissa, as his second wife and the minor girls are in the latters custody and he is providing for their maintenance sending money from abroad. The mother disputes the second marriage of the father and she would say that the father has only struck up an immoral relationship with Habeebunnissa. By his relationship with Habeebunnissa, the father has got three issues. The mother would say that the minor girls were snatched away from her custody by the father while they were playing in front of the house on 5.4.1985. There were criminal proceedings for the custody of the minor girls initiated in 1985 and prosecuted by the mother. Though she succeeded initially on 24.6.1985, before the concerned Sub-Divisional Judicial Magistrate, that was nullified on the technical plea that the criminal law could not appropriately be set in motion for custody of minor children as between parents. This happened on 15.6.1987 by a decision of this Court in a criminal revision case. Thereafter, in September, 1987 the move by the mother for the guardianship and custody of the minor girls was taken before the first Court. 4. Both before the first Court and before the learned single Judge, the aspect of the welfare of the minors was primarily projected by the parties to say that she or he must get at the right of guardianship and custody of the minor girls. To the same effect were the submissions made before us by both the sides. No one need quarrel over the proposition that the sole consideration both in the case of guardianship and custody of the minor should be the welfare of the minor and the Court is bound to take into consideration all the facts and circumstances of the case; bearing in mind that the pivotal factor is the benefit and well-being of the minor. The father was and is away from India and he occasionally comes to India. The father was and is away from India and he occasionally comes to India. The father has taken another woman Habeebunnissa, whom he calls his second wife and who is also his power agent. Through this alliance, it is admitted he has got three issues. He has left the minor girls in the custody of this woman. The mother is fighting to have the custody of the minor girls from 1985. She could not, by any stretch of imagination, be said to have lost interest in the minor girls. The allegation that the mother is leading an immoral life with another man has not been sustantiated. What is being put in the forefront by the learned counsel for the father is that for a considerable length of time, the two minor girls are in the custody of Habeebunnisa, the alleged second wife of the father; the father is maintaining them very well by sending money from abroad and the elder of the minor girls, when examined before the first Court showed an inclination to be only with Habeebunnissa and she even went to the extent of denying knowledge of her natural mother. The minor girls being in the custody of Habeebunnissa, the alleged second wife of the father, was and is a fortuitous circumstance. On that account, the mother could not be stated to be not entitled to the guardianship and the custody of the minor girls, in the absence of any other disqualifying factor made out against her. When the mother is alive and is coveting the custody of her minor girls, can the Court forget her and entrust the custody of the minor girls to another woman, who calls he rself to be the second wife of the father and when the father is not here to personally look after the minor girls? The only answer for the question is ‘No’, The proposition that the father is looking after very well the maintenance of the minor girls by sending money from abroad, cannot weigh very much with the Court for deciding the present issue, because the father, if he is duty-bound to maintain the minor girls, that obligation will not be lost by a decision on the present issue. Primarily the minor girls should be in the custody of either of the parents. Primarily the minor girls should be in the custody of either of the parents. Of the parents, the mother is very much here and she is opening up her arms to receive the minor girls. The father is abroad and he wants the minor girls to be in the custody of a woman., who is certainly a stranger woman so far as the minor girls are concerned; be so, the father calls the other woman, his second wife. The affording of a luxury, affluence and maintenance to the minor girls, better than what could be afforded by the mother, could not be, on the facts of the case, a criterion for the Court to deny guardianship and custody of the minor girls to their mother. Even from the moral and ethical point of view, it is better that the minor girls are with the mother, who is very much here. The feature that the eldest of the minor girls deposed before the first Court showing a disinclination to be with the mother cannot be a decisive factor. The principle is that though the Court may ascertain the wishes of the minor, such wishes are not controlling on the Court and the Court has to assess the entire facts and circumstances of the case and in appropriate cases even disregard the wishes and preferences expressed by the minor. 5. To gather our own impression about the attitude of the minor girls, as already noted, we summoned their presence and they are present today. We examined the minor girls without the presence of the counsel on both sides and the parties, so as to create a free atmosphere for the minor girls. Our first impression is that the minor girls are suffering from a sort of phobia which it is not possible to describe in clear terms. We questioned them carefully and we gathered the impression that they could not be stated to be totally disinclined to go to their mother. Any disinclination exhibited by them, in our view, could only be the result of their being kept away long from their mother. It would be unnatural even to assume, in the absence of very compelling and serious circumstances that the minor girls will not be happy with their mother. Any disinclination exhibited by them, in our view, could only be the result of their being kept away long from their mother. It would be unnatural even to assume, in the absence of very compelling and serious circumstances that the minor girls will not be happy with their mother. We asked the minor girls as to whether their mother would ill-treat them and the eldest of the minor girls said ‘No. 6. Apart from our personal impression on the examination of the minor girls, we have found the factual justification for the mother to have the custody of the minor girls. We have not been persuaded to hold that on account of any factor, the mother of the minor girls has lost her right to have their guardianship and custody. This being our assessment, we have no other alternative but to dismiss this Letters Patent Appeal and accordingly we dismiss it. Now that we have dismissed this Letters Patent Appeal., we direct the father, the appellant and his power agent Habeebunnissa, to hand over the custody of the minor girls to the mother, the respondent, on or before 31.5.1991. There will be no order as to costs.