Smitha K. vs P. Devadas

K.M. Joseph, J.—These matters being connected and being between the same parties, they are disposed of by this common Judgment.

Mat. Appeal No. 327/09 is filed against the order dated 8.4.2009 in OP. No. 1003/08 filed by the father. The wife is the Appellant in Mat. Appeal No. 406/09. She challenges the same order as in Mat. Appeal No. 327/09. By the impugned order in the Appeals, the Family Court has disposed of the Application for custody of their minor daughter aged about ten years, by granting custody of the child to the father on all Sundays between 8 AM and 6 PM. RP(FC). No. 274/09 is filed by the father against the order in M.C. No. 748/2008 granting maintenance to the child at the rate of Rs. 1,500/- per month. O.P. (FC). No. 305/2011 is filed by the mother feeling aggrieved by Exts.P6 and P10 which are orders essentially arising out of the impugned order in the Mat Appeals referred to above.

We heard the learned Counsel for the parties. Learned Counsel for the father would submit that he will be satisfied with custody of the child being given on the first and third Sundays between 8 AM and 8 PM. He would further pray that the child may be allowed to be in the custody of the father on the Second Saturday and Sunday of every alternate month and he is prepared to take the child to his sister''s/sister-in-law''s residence at Kozhikode and the child will not spend time with him alone, and that there will be no overnight custody in the father''s company alone. He further prays that in the interest of justice, the father may be given custody of the child on three days during Onam holidays, four days during Christmas vacation and two weeks during summer vacation.

Per contra, learned Counsel appearing on behalf of the mother would point out that having regard to the interest of the child, the order passed by the Family Court is illegal. She would further submit that, at any rate, there cannot be overnight custody She further point out that if overnight custody is given, condition should be imposed that overnight custody cannot be with the father alone and he is to take the child to his sister''s residence at Kozhikode and the child must stay there. She would further point out that the School in which the child is studying does not have Onam holidays She would say that if this Court is inclined, the period of custody for the father during Christmas vacation should be limited to three days and during summer vacation, it should be limited to one week.

Having regard to the interest of justice and having heard the learned Counsel for the parties, we are inclined to pass the following Order regarding the custody of the minor child in modification of the order passed by the Family Court in the Mat Appeals:

The father will be given custody of the minor child on the first and third Sundays of every month between 8 AM and 6 PM. The arrangement by which custody is to be transferred be followed. The father will be given custody of the minor child on every Second Saturday and Sunday of every alternate month, the custody commencing from 9 AM on the Second Saturday and ending with 6 PM on the following Sunday. This will be subject to the condition that the father will take the child on Second Saturday itself to the residence of his sister and the father of the child will not have overnight custody of the child by himself. That is to say, the father cannot spend the night together alone in the residence of the father at Malappuram. We also order that the father will be given custody of the minor child during the first three days of Christmas vacation commencing at 9 AM and ending at 6 PM. There also, the condition that the father must take the child to the house of the sister which we have referred to above, will apply. Further, the father will be entitled to ten days custody during the summer vacation (first ten days) commencing at 9 AM and ending at 6 PM on such condition which we have imposed in respect of overnight custody of the child even during the said period. This will be, of course, subject to the condition that the Appellant/father will continue to pay maintenance at the rate ordered by the Family Court.

As far as RP(FC). No. 274/09 is concerned, the Petitioner/father has not been able to convince us that there is any merit in the argument. The Family Court has ordered maintenance at the rate of Rs. 1500/= per month to the child. In such circumstances, we dismiss the RP(FC). No. 274/09. OP(FC) No. 305/11 being an offshoot of the impugned order in the Mat appeals which we have already modified, we close the same as infructuous. The arrangement in the matter of taking custody of the child from the mother and handing back custody to the mother as is continued, will continue.

The Mat. Appeals are disposed of as above.