Niyas Ahmed M vs Safa V.P

Gopinath P, J.

The petitioner herein is the petitioner in O.P (G&W) No.407/2022 on the file of the Family Court, Tirur. That original petition has been filed for orders regarding the custody of the minor child born out of the relationship between the petitioner and the respondent. The petitioner filed I.A. No.21/2022 in O.P (G&W) No.407/2022 seeking custody of the child during Christmas Vacation. The Petitioner has approached this Court, challenging the order in I.A. No.21/2022 in O.P (G&W) No.407/2022 on the file of the Family Court, Tirur, through which the petitioner has been given custody of the minor child only from 10.00 A.M on 29.12.2023 till 04.00 P.M on 01.01.2024.

Learned counsel appearing for the petitioner would submit that the petitioner should have been granted at least ten days of custody in the facts and circumstances of this case. It is submitted that though there are earlier orders regarding the grant of custody to the petitioner/father, these orders have not been complied with by the respondent, and the petitioner has not been able to obtain interim custody as directed by the court. It is submitted that the child is happy with the petitioner and his family, and there is no reason to deny custody for the period of ten days during the Christmas vacation as requested, in Ext.P1 application.

Learned counsel appearing for the respondent vehemently opposes the grant of relief to the petitioner. He submits that the contention undertaken by the learned counsel for the petitioner that there has been a violation of earlier orders regarding the custody is contrary to the pleadings in the Original Petition. It is submitted that the child has been under treatment for wheezing and vomiting and is presently on antibiotics. It is submitted that any extension of the period of custody will not be in the best interest of the child, as the school to which the child is admitted will reopen on 03.01.2024. It is submitted that considering the health condition of the child, the respondent (mother) had actually contemplated the filing of a petition to modify the order in I.A. No.21/2022 but did not do so only on account of the fact that there was an undertaking before the court that custody of the child can be given for the period from 29.12.2023 till 01.01.2024.

Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent, we find no ground made out to interfere with Ext.P4 order of the Family Court in I.A. No.21/2022, especially considering the fact that the school to which the child is admitted is reopening on 03.01.2024. Secondly, we also notice that the child is aged only 5½ years, and the objections filed by the respondent indicate why the custody of the child cannot be given for a longer period. That apart, the child is also stated to be suffering from lower respiratory infection, wheezing and vomiting and seems to be on a course of antibiotics as evidenced by the prescription issued from the Amana Medical Institute (P) Ltd, Kuttippuram, which has been placed before us by the learned counsel appearing for the respondent. However, considering the fact that the petitioner has been granted only four days of custody, we are of the opinion that the petitioner can be permitted to retain the custody of the child till 04.00 P.M on 02.01.2024, in modification of the order passed by the Family Court, Tirur. We are inclined to permit the modification of the order as above, as the learned counsel appearing for the respondent also does not object to the modification of the order to the extent indicated.

The Original Petition is disposed of as above.