Nisha, Krishnan and Nirmala vs Unnikrishnan

Joseph Francis, J.—This Original Petition is filed under Article 227 of the Constitution of India with the following prayer:

To call for the records leading to Ext. P5 order and set aside the same by means of an appropriate direction or Order

The facts of the case are briefly as follows. The respondent herein filed O.P. No. 511 of 2008 before the Family Court, Malappuram against the

1st petitioner herein, for custody of the child born in the wedlock between them. The matter in dispute was settled by filing a joint statement

between the respondent herein (petitioner) and 1st petitioner herein (respondent), wherein it was agreed that from 23.11.2008 on all Sundays at 9

a.m., the respondent therein (mother) would hand over the minor child then aged 3 years to the petitioner (father) and he would hand over custody

of the child the next day at 9 a.m. and that if there was any default in payment of maintenance amount by the petitioner therein, the agreement need

not be adhered by the respondent therein. That Original Petition was allowed in terms of that joint statement.

In this O.P. (F.C.), it is alleged that after passing of the compromise order in O.P. No. 511 of 2008 the respondent herein has not come over

either to see the child or to take her with him for a day in terms of that order. It is alleged that in fact even the maintenance of the child was kept in

arrears and was paid in piecemeal on filing execution petitions and on taking coercive steps. It is alleged that the child has throughout been with the

1st petitioner-mother and the other petitioners-grandparents of the child and she is looked after and cared with all love and affection and her

interests are taken care of with utmost devotion. It is further alleged that while matters stood as above, the 1st petitioner herein and the respondent

got divorced and the 1st petitioner thereafter married Ali Kallem Veettil s/o. Mohammed Unni, Puduponnani and the marriage was registered on

25.1.2012 under the Special Marriage Act. The respondent is also in the process of getting married to another lady. Settlement is arrived at in this

regard between the families of the respondent and the said lady. The petitioners allege that the respondent, in the above state of affairs and with a

view to get over the coercive steps initiated for getting maintenance of the child, with oblique motives filed I.A. No. 2103 of 2011 in O.P. No. 511

of 2008 alleging that the 1st petitioner went away with Ali after abandoning the child, on 8.9.2011 and therefore the interests of the child, who is

presently with her grandparents (petitioners 2 and 3 herein) would be better served by giving him permanent custody. It was also alleged that the

1st petitioner converted to Muslim religion.

The 1st petitioner herein filed detailed counter in that I.A. contending inter alia the malafides in filing the petition by tarring her reputation and

getting over the coercive steps initiated for recovery of arrears of maintenance amount for the child. It is true that the 1st petitioner got married to

Ali, with the approval of their respective families. The child has so far and continues to be with the 1st petitioner and is being looked after by her

husband and the grandparents of the child. The respondent has not alleged anything done by the 1st petitioner detrimental to the welfare of the

child and moreover he has neither cared even to see the child or to provide her with maintenance.

The Family Court, Malappuram allowed I.A. No. 2103 of 2011 in O.P. No. 511 of 2008 on 18.6.2012 on finding that the first petitioner

married another person and delivered a child and violated the terms of the joint statement and the welfare of the child would be better served by

granting full custody of the child to the respondent. Ext. P5 is the copy of that order. Against that order the respondents in that I.A. filed this O.P.

(F.C.).

Heard learned counsel for the petitioners and learned counsel for the respondent.

Learned counsel for the petitioners submitted that the Family Court passed the impugned order without considering the welfare of the child, who

is a female child aged 7 years. Learned counsel for the petitioners further submitted that the first petitioner has not converted into Islam and that she

married one Ali under the Special Marriage Act after the dissolution of the marriage between the first petitioner and the respondent. Learned

counsel for the petitioners submitted that the respondent has not paid the entire arrears of maintenance to the minor child and that in the order

under challenge there is no provision for any visitation rights. Learned counsel for the respondent supported the order under challenge and

submitted that the first petitioner can be granted the visitation rights to see the child during the day time and that the respondent is prepared to

deposit the entire arrears of maintenance due to the minor child. There is no dispute that the marriage between the first petitioner and the

respondent was dissolved on the basis of divorce petition filed by the wife and thereafter the first petitioner married one Ali on 25.1.2012 as per

the provisions of the Special Marriage Act. According to the respondent, the first petitioner converted into Islam after the marriage which is denied

by the petitioners. At present the first petitioner is having another child in her second marriage. The respondent has not remarried so far. Under

normal circumstances, the natural guardian is entitled to have custody of the minor child. Hence, the father, as the natural guardian is entitled to

have the custody of the minor child, though in case of a minor under 5 years the mother has the right to custody of minor by reason of proviso to

Section 6 of the Hindu Minority and Guardianship Act 1956. The paramount consideration governing the custody of the child is the welfare of the

child. The first petitioner is now remarried and she is having another child in that wedlock and the respondent remains unmarried and the minor

child is now aged 7 years. Considering all these aspects of the matter, we are of the view that the Family Court is fully justified in giving full custody

of the minor child to the respondent. The first petitioner being the mother of the child, her visitation rights cannot be denied. Considering the facts

and circumstances of the case, we are of the view that the first petitioner can be permitted to interact with the minor child on alternate Saturdays

between 10.30 a.m. and 12.30 p.m. near the Court premises of Ponnani Munsiff Magistrate''s Court or other suitable place as agreed by both

sides.

Accordingly the Original Petition is allowed in part. The order in I.A. No. 2103 of 2011 in O.P. No. 511 of 2008 dated 18.6.2012 on the file of

the Family Court, Malappuram giving full custody of the minor to the petitioner in that I.A. (respondent herein) is confirmed subject to the condition

that the petitioner therein should deposit the entire arrears of maintenance due to the minor child till this date before the Family Court, Malappuram

within two months from today. On such deposit the respondent in that I.A. (first petitioner herein) should hand over the child to the

respondent/father. The first petitioner (mother of the child) is allowed to have the visitation rights to see and interact with the child on all alternate

Saturdays between 10.30 a.m. to 12.30 p.m. near the Court premises of the Munsiff Magistrate, Ponnani or such other convenient place, as

agreed by both sides. There is no order as to costs.