V.K.Riyas @APPELLANT@Hash Marshida

The appellant is the petitioner in O.P.No.387/2009 on the file of the Family Court, Kozhikode and the said original petition was filed, seeking a decree for getting the custody of the child from the respondent. The appellant and respondent were husband and wife respectively and one female child was born out of the wedlock between the appellant and the respondent, which stands dissolved by pronouncement of talaq. The child was aged 5 years and was studying in kindergarten at the time of filing the original petition. The parties are referred to as they are in the original petition.

After delivery of the child, the relationship between the petitioner and the respondent has become strained and the custody of the child was given to the respondent on the basis of an agreement dated 9.3.2009 entered into between the petitioner and the respondent. The petitioner pronounced talaq against the respondent on 9.3.2009 and thereby divorced her. The child is studying at Vidhyakendra School, Puthiyambalam, Kozhikode. According to the petitioner, he went to the said school on various occasions to see the child, but he could not see the child at school. On enquiry, it was told by the Principal of the school that the child was not going to the school after 10.2.2009. The respondent was not sending the child to the school with an intention to deny the opportunity to the petitioner to see the child. The behaviour and attitude of the respondent will adversely affect the education and future of the child. The petitioner came to know that the respondent intends to get marry again. In such a situation, the child will be under the care and protection of a third person. So, the petitioner is entitled to get the custody of the child as the natural guardian and he is suffering from mental agony caused by the denial of opportunity to see the child. He is ready to give proper education and good future to the child. With the aforesaid averments, he prayed for a decree granting the custody of the child to him.

The respondent filed a counter statement denying the allegation that she is not sending the child to the school so as to deny the opportunity to the petitioner to see the child. According to her, the petitioner never came to see the child and never wanted the respondent to make available the child for him to see. She is giving good education and atmosphere for her growth and development. But the petitioner did not have any love and affection towards the daughter even during the subsistence of the marital life and after the dissolution of marriage. Even during the subsistence of marital life he did not care to look after the child properly. At the time of pronouncement of Talaq, the petitioner did not put forward any claim in respect of the custody of the child. The respondent got employment. But, she is taking proper care and caution to look after the child. The child is studying well in the school and she is involved in all activities in the school. The petitioner neither made any inquiry in respect of the daughter nor had he provided any maintenance allowance to them. The child is presently studying in LKG class in Vidhya Kendra School, one of the best schools in Calicut city and she is doing very well in her studies and also participating in many of the extra curricular activities. She is considered as one of the best students in the class and she has been highly appreciated by the school authorities for her extra curricular activities. The child being a girl having only 4 years requires love, care and protection of the mother. But, the petitioner is a very busy person making a lot of travel to many places including foreign countries. So he is unable to give proper care and caution to maintain the child. He has some criminal background also. He is also having illicit love affair with a Malaysian lady. With the aforesaid averments she prayed for dismissal of the original petition.

On the aforesaid rival pleadings, both parties adduced evidence. The petitioner was examined as PW1 and respondent was examined as RW1. The respondent produced Exts B1 to B6. But no documentary evidence was produced by the petitioner. On appraisal of the aforesaid evidence available on record, the family court dismissed the original petition on the ground that the petitioner miserably failed to prove the allegations in the original petition and it was found that the respondent is looking after the child with proper care and protection. The legality and correctness of the aforesaid findings are assailed in this appeal.

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

It is not disputed that the custody of the child was given to the respondent on the basis of an agreement dated 9.3.2009 which was executed at the time of pronouncement of talaq by the petitioner. There is no allegation against the execution of the agreement or the circumstances under which the said agreement was executed. Therefore, the question to be considered is whether the petitioner has succeeded in proving any fresh circumstances warranting change of custody from the mother to the father. It is not disputed that the petitioner was given visitorial right to see the child as per the agreement dated 9.3.2009. In this original petition it is a case of the petitioner that the respondent is not sending the child to school with an intention to deny an opportunity to the petitioner to see the child and the respondent is not taking proper care and caution to give good education to the child. He came to know that the respondent intends to get married again and if she is remarried, the child would be constrained to live under the care and protection of another person. On the other hand, the respondent contended that the child is studying in LKG class in Vidhya Kendra School and the said school is one of the best schools in Calicut city and she is doing very well in her studies and also participating in many of the extra curricular activities. The petitioner is a businessman who used to travel abroad frequently and he is always very busy. He is unable to look after the daughter who is 4 years only and a child being a girl having only 4 years requires love, care and affection of a mother. If the custody of the child is given to the petitioner the same would ruin the future of the child.

In order to prove the averments in the original petition the petitioner was examined as PW1 and no documentary evidence or supporting oral evidence was adduced to establish his case. Therefore the oral assertion of the petitioner alone requires to be scrutinized so as to find out the genuineness and bona fides of the allegations levelled against the respondent. On the other hand, the respondent was examined as RW1 and she has produced Exts B1 to B6 to disprove of the allegations made against her in the original petition. The main allegation against the respondent is that she is not taking proper care to give good education to the child and the child is not good in her education. It is his oral assertion. But the respondent has produced Ext B4 progress report of the child and Ext B5 certificate showing the participation of the child in 'Xplore Summer'. 1st term evaluation reads as follows: "Aysha, though she joined later has coped up very well with the school activities. She is one of the best students in the class who enjoys and participates in all activities. She is very loving and has a sharing attitude". According to IInd term and IIIrd term evaluation also "she is one of the best students of the class and she is very active and participates very well in all activities". After assessing her performance in studies during the three terms it is reported that Aysha has done well throughout the year, she is put in all activities.

On an analysis of Ext B4 it cannot be held that she was absent in school or the respondent is not sending her to the school in order to deny an opportunity to the petitioner to see the child. Therefore in view of Ext B4 progress report, the Family Court is justified in rejecting the contention that the child is not good in her education and the respondent is not giving proper care to the education of the child. Further it follows that there is no circumstances warranting change of custody from the mother to the father considering the education of the child.

It is further contended that the respondent denied an opportunity to the petitioner to see the child. Except to the oral assertions of the petitioner, no evidence was produced to substantiate the said contention. It has come out in evidence that the petitioner is not aware of the person who is paying fees to the child. No evidence was forthcoming to show that he has given any amount towards maintenance allowance of the child. Though, it was contended that on an inquiry at the school it was revealed that the child is not regularly coming to the school, no evidence was adduced to substantiate the said contention.

It is further contended that the respondent intends to get married again and in that event the child would be constrained to live under the custody of a third person. Except the oral assertion of the petitioner himself, there is no evidence to substantiate the said contention. Similarly there is no evidence to show that he had made any attempt to visit the child in school and he failed to see the child. The respondent contended that he is a businessman having frequent foreign visits and he is always engaged in his business activities. The said contention was not denied by him. Thus, admittedly, the petitioner is a businessman conducting travel and tour extensively for his business purpose and his presence is not available in the house during the day time and his aged parents alone are available in the house.

In the above circumstances, the family court is justified in finding that it is better for the child, to continue the custody of the mother. As rightly observed by the family court a mother alone can give constant attention, protection and care to her daughter particularly when she is aged 4 years only. A father fully engaged in business activities cannot give such an attention, care and protection to a minor girl just like a mother. Therefore, in the above view, we find that the petitioner miserably failed to prove his contention that the welfare of the child would be in peril if the child is in the custody of the mother. On the other hand, it stands proved by the evidence adduced by the respondent that the child is one of the best students in the school and she has been participating in all extra curricular activities in the school.

Going by the impugned judgment it has come out in evidence that at the time of disposal of the case, the child was studying at Bangalore and the mother was working as Manager of a Human Resources in a private institution. The child is studying at Jain Public School, Bangalore and the said school is very near to the residence of the mother. Her parents are also living with her to assist the respondent and the child.

In the above circumstances, we also find that it is better and safe for the child to continue to live with her mother. But, the petitioner is entitled to get retained his visitorial right. During the pendency of this appeal, this court has passed an interim order dated 17th June 2011, changing the venue of the visit. The said order is made absolute and visitorial right will stand regulated by the said order provided that he cannot exercise his visitorial right if he fails to pay maintenance allowance to the child.

The matrimonial appeal is dismissed and all the pending interlocutory applications will stand closed.