Khadeeja vs Ramshad K.K.

S.P. Chaly, J.—1. This Mat Appeal is filed by the respondent in IA.2259/15 in OP.375/14 against the order passed by the Family Court, Tirur dated 8.1.2016, whereby the Family Court has directed the appellant to handover custody of the minor child to the respondent on the 2nd and 4th Saturdays of every month from the Family Court premises at 11 a.m. and the petitioner to entrust back the child to the respondent at 4.00 p.m. on next Sunday at the court. Brief facts for the disposal of the appeal are as follows:--

Respondent herein has filed IA. No. 2259/15 in OP.375/14 before the Family Court, Tirur seeking to get interim custody of the minor child viz. Rashika who is in the custody of the appellant herein as per the order dt. 19.8.2015 in OP. No. 375/14 of the Family Court, Tirur. The original petition is filed by the respondent/father seeking permanent custody of the child. The daughter of the appellant viz. Fathima and respondent were married on 23.7.2009 and a child named Rashika was born out of the wedlock. While Fathima was hospitalised at Medical College Hospital, Kozhikode consequent to certain burn injuries on her body, for the period from 26.3.2010 to 3.4.2010 the minor child Rashika was under the custody of the appellant herein. Fathima succumbed to the injuries on 3.4.2010. When the respondent herein visited the child on the 3rd day of the death of his wife Fathima the appellant refused the child to go with the respondent. Eventhough several attempts were made to get the custody of the minor child he did not get any result. Thereupon the respondent approached the Family Court, Tirur with the above original petition to have permanent custody of the above child.

The appellant opposed the application contending that at the time of death of Fathima the minor child was a suckling child and Fathima died under suspicious circumstances and the respondent herein and his mother were responsible for the death of Fathima. It was also contended that all the gold ornaments of Fathima was misappropriated by the respondent herein and the appellant suspects that it was a murder. Immediately after the death of Fathima the respondent married another lady and he is residing abroad. The appellant as the grandmother of the child has taken care of the child and she is providing due care and protection to the child and the life of the child is more safe in her hands. The appellant also contended that she has no objection in the respondent visiting the minor child on limited occasions.

The learned Family Court after considering the rival contentions of the petitioner and the respondent and after perusing the records dismissed the original petition denying custody of the minor child to the petitioner, but allowed to visit the minor child from the respondent''s residence during week-end holidays when he is available at the native place, by virtue of an order dt. 19.8.2015 and the said order has become final.

Thereafter the respondent herein filed IA.2259/15 in the above original petition for interim custody of the minor child contending that the appellant has not provided with week-end custody of the minor child ordered by the Family Court as stated above. Therefore the Family Court allowed the above IA and passed the impugned order directing the appellant to handover custody of the minor child to the respondent herein on 2nd and 4th Saturdays of every month from the Family Court at 11 a.m. and directed the respondent to entrust back the child at 4.pm on the following Sunday at the Family court. It is thus aggrieved by the said order providing overnight custody the appellant has preferred this appeal before this court.

Heard learned counsel for the appellant and the respondent. The main contention advanced by the learned counsel for the appellant is that since the child being of very tender age and very attached to the appellant the child may not feel comfortable if overnight custody is granted to the respondent. The grant of overnight custody will not be conducive to the interest of the child which would also in turn affect the health of the child and thereby the child will be put to severe difficulties. On the other hand learned counsel for the respondent submitted that being a father he is entitled to have custody of the child and he has more voice than the maternal grandmother. That apart, it is also contended that in order to have affection and interaction with the child, overnight custody is to be provided to the respondent. However considering the facts and circumstance, the tender age of the child and also taking into account the residence of the child with the appellant, we are of the considered opinion that day time custody can be granted to the respondent till the child gets proper acquaintance with the respondent. In that view of the matter we modify the order passed by the Family Court and direct the appellant to hand over custody of the child to the respondent on the first and last Saturdays and 1st and last Sundays of every month from 10.30 am to 4 p.m. The child shall be handed over by the appellant to the respondent at the Family Court premises and the respondent shall return the child to the appellant from the very same premises after making due entries in the register maintained for the purpose. It is made clear that the respondent will be entitled to take the child outside the premises of the Family Court within the limits of the Tirur town. The above arrangement is for a period of 3 months and thereafter the parties will be at liberty to seek appropriate modification before the Family Court.

The Mat. Appeal is disposed of accordingly.