Abdul Azeez.K.K. and Suhara v. Arun C.A.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941** **OP (FC).No. 166 of 2019** **AGAINST THE ORDER IN I.A.NO.180/2019 IN OP 71/2019 of FAMILY COURT, ERNAKULAM DATED 08.03.2019** ## **PETITIONERS/RESPONDENTS :** **1 ABDUL AZEEZ.K.K., AGED 63 YEARS, S/O. KHADER, KANJIRATHINKAL HOUSE, MOOLEPPADOM ROAD, NJALAKAM KARA, KALAMASSERY, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **2 SUHARA, AGED 55 YEARS, W/O. ABDUL ASIS K.K., KANJIRATHINKAL HOUSE, MOOLEPPADOM ROAD, NJALAKAM KARA, KALAMASSERY, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI SRI.RAMEEZ NOOH** ## **RESPONDENT/PETITIONER:** **ARUN.C.A., AGED 30 YEARS S/O. ABDUL RAHMAN, ARAFA VILLA, KANIYAMKUNNU, NEAR U.C. COLLEGE, ALUVA, ERNAKULAM DISTRICT-683 102** **BY ADVS. SRI.K.A.JALEEL SRI.C.Y.VINOD KUMAR** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (FC).No. 166 of 2019 2 ## **JUDGMENT** ## **Harilal, J** The petitioners herein are the father and mother respectively of the respondent's deceased wife Sunitha Azeez. Aggrieved by the order passed by the Family Court, Ernakulam in I.A.No.180/2019 in O.P.No.71/2019; granting interim custody of the minor children to the respondent herein, the petitioners preferred this original petition, before this Court, assailing the findings, whereby the family court passed the said order. 2. The brief facts of the case can be summarised as follows. The respondent herein filed O.P.No.71/2019, seeking an order, declaring and appointing him, as the father and natural guardian of the minor female children, by name Aysha Mehnaz and Hessa Fathima, and direct the OP (FC).No. 166 of 2019 3 petitioners herein to produce the said minor children before the Family Court to give custody of the children to the respondent. Along with the said original petition, the respondent had also filed Ext.P6 i.e., I.A.No.180/2019, seeking an order granting interim custody of the children to the respondent. According to the respondent, he married the petitioners' daughter on 19.01.2014 and after the marriage they lived together, as husband and wife in his house. On 15.08.2018, his wife went to the petitioners' home and on 30.09.2018 she attempted to commit suicide and as a result of that on 19.09.2018 she succumbed to her injuries in the hospital. After the death of his wife Sunitha, the children are in the custody of the petitioners herein. Being the father of the said children, legally he is entitled to get custody of the children and he has enough capacity to provide OP (FC).No. 166 of 2019 4 food, education, etc., to them. The life and future of the children are not safe in their hands and he apprehends that the petitioners will spoil the future of his children. The petitioners are aged and sick, they are not fit to have the custody of the children. Though he tried to see the children, the petitioners had objected the same and abused him. He is not permitted to have any contact with them. 3. The petitioners herein jointly filed counter affidavit denying the allegations in the original petition as well as in the I.A. According to the petitioners, the respondent was liable for the cause of the death of their daughter. The respondent and his parents ill-treated their daughter physically and mentally and the respondent threatened to pronounce thalaq. The petitioners have never ill- OP (FC).No. 166 of 2019 5 treated their daughter. They are capable to maintain the children. The first petitioner is the Secretary to the Kalamassery HMT Junction Juma Masjid and Board member of Co-operative Bank, Kalamassery. They are financially capable to look after the children. According to them, since the respondent was liable for the cause of death of their daughter, the police registered a crime as crime No.1559/2018 against the respondent under Section 498A r/w 304B of the Indian Penal Code. The minor children will not be safe or secured, if their custody is given to the respondent, against whom the criminal prosecution proceedings are pending. With the aforesaid averments, they objected the granting of interim custody of the minor children, to the respondent. OP (FC).No. 166 of 2019 6 4. On the side of the respondent Exts.A1 and A2 were marked and petitioners have produced Exts.B1 to B5. After evaluating the materials on record, the Family court allowed I.A.No.180/2019, granting custody of the children to the respondent till the disposal of the original petition and interim custody from 10 a.m. on every Saturdays till 4 p.m., on ensuing Sundays, to the petitioners. The legality and correctness of the findings, whereby the family court granted interim custody of the children to the respondent are challenged in this original petition. 5. Heard the learned senior counsel appearing for the petitioners and the learned counsel for the respondents. OP (FC).No. 166 of 2019 7 6. The sum and substance of the arguments advanced by Smt.Sumathy Dandapani, the learned senior counsel appearing for the petitioners is that the registration of a crime under Section 498A r/w Section 304B of the Indian Penal Code against the respondent herein is a fact which would disqualify and dis-entitle the respondent to get interim custody of his children, during the pendency of the original petition. According to the learned counsel, the Family Court has totally discarded the pendency of the crime registered against the respondent under Section 498A r/w 304B on a finding that unless and until the respondent is convicted for the offence alleged against him, no inference can be drawn against him so as to disqualify or dis-entitle him to get the interim custody of the children. To support the aforesaid arguments, OP (FC).No. 166 of 2019 8 the learned counsel for the petitioners have produced the decision of the Supreme Court in _**Nilratan Kundu and**_ _**another v. Abhijit Kundu**_ [ **2008 (9) SCC 413** ]. 7. Per contra the learned counsel for the respondent submits that the mere registration of a crime alone will not disqualify the natural guardian from getting interim custody of his children during the original petition. The pendency of the crime is of no consequence at all, while considering interim custody of the children to their natural guardian. According to the learned counsel, there is no material, other than the registration of a crime, to arrive at a finding that the respondent was responsible or liable for the cause of the death of the petitioners' daughter. Further, it is contended that the respondent is the natural guardian and the petitioners' OP (FC).No. 166 of 2019 9 have no legal right to get custody of the children, so long as the natural guardian is alive. 8. In view of the arguments advanced across the bar, the short point that arises for consideration is, whether the court below is justified in granting interim custody of the children to the respondent, the natural guardian, till the disposal of the original petition. 9. It is not disputed that the respondent is the natural guardian of the children, who is entitled to have the custody of the children, in accordance with law. The petitioners' daughter Sunitha committed suicide, when she was in the petitioners house along with the children. After the death the petitioners filed Ext.B2 complaint alleging the liability for the cause of death on the OP (FC).No. 166 of 2019 10 respondent herein and the police registered FIR as Ext.B1 against the respondent under Section 498A and 304B of IPC and the said criminal case is pending for investigation. It is also revealed that in view of the complaint filed by the respondent, re-investigation is also going on. The petitioners have produced Ext.B3 letter to substantiate their contention that the respondent was liable for the cause of death of their daughter Sunitha. 10. Going by the impugned order under challenge it could be seen that the Family Court has not taken the registration of the crime into consideration, on a finding that unless and until the respondent is convicted for the offfence alleged against him, no inference can be drawn against him so as to disqualify or dis-entitle him to get OP (FC).No. 166 of 2019 11 interim custody of the children. 11. We have meticulously gone through the _Nilratan Kundu's case (supra)_ and going by the aforesaid decision, we find that the said decision was laid down in an appeal challenging the final order granting permanent custody of the children, to the father against whom charge under Sections 498A and 304B of IPC, was pending for trial. After analyzing the facts of that case, the Supreme Court observed that the pendency of the case charging offence punishable under Section 498A of IPC cannot be discarded as it can be a relevant fact also while determining custody of a ward. The supreme court further observed that the documents pertaining to the criminal case also can be taken into consideration, so as to evaluate or assess the circumstances to which the OP (FC).No. 166 of 2019 12 children can be put in. 12. But in _**Mausami Moitsa Ganguli v. Jayant Ganguli**_ [2008 - (7) SCC 673], the Supreme Court held that “each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned”. 13. We are of the opinion that the proposition laid down in the aforesaid decision cannot be applied to the instant case, at this stage, as the crime registered against the respondent is under investigation and re-investigation is also going on, on the complaint filed by the respondent, unlike the facts of the case in the said decision. The complaint filed by the 1[st] petitioner against the respondent alleging offences punishable under Section OP (FC).No. 166 of 2019 13 498A and 304B and the FIR registered on that complaint are produced in this case. In view of the above decision if charge is filed against the respondent, that can be considered at the time of final hearing of the original petition only. The matters which require to be considered in an interlocutory application seeking an interim relief and the final relief are entirely different. The scope and extent of consideration in this case are confined to Exts.A1 to A2 and Exts.B1 to B5 only and those documents are not admitted in evidence, in accordance with law. 14. The learned counsel for the petitioners drew our attention to Ext.B3 letter, which is said to have been written by the deceased Sunitha. We are of the opinion that such a letter, which is said to have been written by OP (FC).No. 166 of 2019 14 the deceased cannot be taken as a ground to deny the interim custody of the children to the natural guardian, unless and until the said letter is admitted in evidence, during the course of trial, in accordance with law. More importantly, Sunitha committed suicide, while she was living with the children in the house of the petitioners. No other documents have been produced so as to disentitle the respondent from getting the custody of his children. ## 15. In _Nilratan Kundu's case (supra),_ the reliable portion of paragraph No.42 reads thus: _42.In Rosy Jacob v. Jacob A.Chakramakkal [(1973) 1 SCC 840, this Court held that the object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of the ward's health, maintenance and education. The power and_ OP (FC).No. 166 of 2019 15 _duty of the court under the Act is the welfare of the minor. In considering the question of welfare of a minor, due regard has of course to be given to the right of the father as natural guardian, but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship._ 16. On an analysis of the impugned order, we find that the Family Court has arrived at a _prima facie_ decision that the natural guardian is fit for getting interim custody of the children till the disposal of the original petition and there is no sufficient material to dis-entitle him from getting interim custody of the children. 17. The principles in relation to custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the “welfare of the child”. The court OP (FC).No. 166 of 2019 16 below has weighed the materials on record, in view of the aforesaid principle. Ext.A1 series of documents would go to show that the petitioner has been regularly giving maintenance allowance to the children. He has already admitted the child in a school; as seen in Ext.A2. Thus, he has already taken care about the education, health etc., of the child. The deceased Sunitha along with the children came to the petitioners house on 15.08.2018, and committed suicide on 13.09.2018, while she was in the petitioners' house. So the children were residing along with the respondent, the father till 15.08.2018, from their birth. Hence the children have been attached with the respondent. His homely atmosphere is very familiar to the children; rather than the petitioners' house. The overnight stay with father is essentially required to develop love and affection OP (FC).No. 166 of 2019 17 between the father and children. So, for the best interest of the children, they can be allowed to continue in the custody of their father, till the disposal of the original petition. 18. We are of the opinion that the documents pertaining to the criminal case against the respondent under Section 498A r/w 304B of IPC also can be considered at the time of passing of the final order. It cannot be taken as a factor which would negate the welfare of the children, at present. We do not find any reason to take a different view from that of the Family Court, as regards the interim custody of the children during the pendency of the original petition. Thus, the family court is justified in granting interim custody of the children to the respondent. OP (FC).No. 166 of 2019 18 19. The parties are at liberty to adduce evidence during the course of trial so as to substantiate all the aforesaid contentions and the Family Court is hereby directed to dispose the original petition, at the earliest, at any rate within a period of five months from today, untramelled by the observations made in the impugned order or this judgment. Hence, this original petition will stand dismissed. Sd/- **K.HARILAL, JUDGE** sd/- **ANNIE JOHN, JUDGE** AMV/25/05/2019 OP (FC).No. 166 of 2019 19 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **EXHIBIT P1** **TRUE COPY OF THE IMPUGNED ORDER IN I.A. NO. 180/2019 IN O.P. NO. 71/2019 ON THE FILES OF FAMILY COURT, ERNAKULAM.** **EXHIBIT P2** - **TRUE COPY OF THE INVOICE CUM RECEIPT NO. CNHM, 19BA01 DTD. 09.11.2018 ISSUED BY T.I.M.E KIDS SCHOOL, KALAMASSERY.** **EXHIBIT P3** - **TRUE COPY OF THE CLASS PHOTO OF THE ELDER MINER CHILD IN T.I.M.E KIDS SCHOOL, KALAMASSERY FOR THE ACADEMIC YEAR 2018-19** **EXHIBIT P4** - **TRUE COPY OF THE ADVANCE RECEIPT FEE NO. CNHM 19AA 47 DTD. 22.2.2019** - **EXHIBIT P5 TRUE COPY OF THE ORIGINAL PETITION O.P. BO. 71/2019 ON THE FILES OF FAMILY COURT, ERNAKULAM FILED BY THE RESPONDENT UNDER SECTION 7 AND 8 OF GUARDIAN AND WARDS ACT, 1890.** - **EXHIBIT P6 TRUE COPY OF THE APPLICATION FOR INTERIM CUSTODY OF THE MINOR CHILDREN FILED BY THE PEITIONER VIDE I.A. NO. 180/2019 IN O.P. NO. 71/2019 ON THE FILES OF FAMILY COURT, ERNAKULAM.** - **EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT DTD. 5.2.2019 FILED BY THE 1ST PETITIONER IN IA.NO. 180/2019 IN O.P. NO. 71/2019 ON THE FILES OF FAMILY COURT, ERNAKULAM.** - **EXHIBIT P8** - **TRUE COPY OF THE F.I.R. NO. 1589/2018 DTD. 18.9.2018 ON THE FILES OF KALAMASSERY POLICE STATION.** OP (FC).No. 166 of 2019 20 **EXHIBIT P9 TRUE COPY OF THE COMPLAINT DTD. 25.10.2018 MADE BY THE RESPONDENT BEFORE THE COMMISSIONER OF POLICE, ERNAKULAM.** **EXHIBIT P10 TRUE COPY OF THE LETTER SENT BY SUNITHA AZEEZ TO THE PETITIONER.** **EXHIBIT P11 TRUE COPY OF THE SETTLEMENT DEED NO. 1256/2018 DTD. 31.3.2018 EXECUTED BY THE 1ST PETITIONER IN FAVOUR OF HIS DAUGHTER SUNITHA AZEEZ.** **EXHIBIT P12 TRUE COPY OF THE MEDICAL BILLS PAID BY THE 1ST PETITIONER IN FAVOUR OF HIS DAUGHTER SUNITHA AZEEZ WHILE SHE WAS ADMITTED IN HOSPITAL FOR DELIVERY OF HER 2ND CHILD.** **RESPONDENTS EXHIBITS NIL** **TRUE COPY P.A.TO JUDGE**