Abdul Sathar A. v. Anooja Basheer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA MONDAY, THE 4TH DAY OF AUGUST 2014/13TH SRAVANA, 1936 OP (FC).No. 339 of 2014 (R) ---------------------------- PETITIONER: ----------- ABDUL SATHAR A. AGED 41 YEARS, S/O.ALI KUNJU, ZENITH HOME, DHONI ROAD, PALAKKAD - 678 009. BY ADVS.SRI.T.M.ABDUL LATHEEF SMT.SHAHINA K. RESPONDENT: ----------- ANOOJA BASHEER, AGED 33 YEARS, D/O.C.E.BASHEER, FLAT 11 H, ABAAD SUNSHINE COURT, VAZHAKKALA, KAKKANAD-682 030. R1 BY ADV. SRI.SREELAL WARRIAR R1 BY ADV. SMT.SADHANA KUMARI ESWARI THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 23-07-2014, THE COURT ON 04-08-2014 DELIVERED THE FOLLOWING: OP (FC).No. 339 of 2014 (R) --------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1. TRUE COPY OF THE PRESCRIPTION ISSUED BY DR. C.D.PREMADASAN OF MANOMITHRA PSYCHIATRIC CARE AND COUNSELLING CENTRE, PALGHAT DATED 27.07.2009. EXHIBIT P2. TRUE COPY OF THE PRESCRIPTION ISSUED BY DR.SOMANATH C.P CONSULTANT PSYCHIATRIST LAKESHORE HOSPITAL AND RESEARCH CENTRE, KOCHI DATED 17.02.1011. EXHIBIT P3. TRUE COPY OF THE PRESRIPTION ISSUED BY DR.V.CHALAM DAS, CONSULTANT PHYSCHIATRIST, SUNRISE HOSPITAL, KAKKANAD DATED 31.01.2012. EXHIBIT P4. COPY OF THE FINAL REPORT DATED 15.02.12 IN CRIME NO.1811 OF 2012. EXHIBIT P5. COPY OF THE ORDER DATED 21.05.2013 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT 1, ALUVA IN CMP NO.1992/12 IN MC NO.108 OF 2012. EXHIBIT P6. COPY OF THE COMMISSION REPORT DATED 12.04.2013 SUBMITTED BEFORE THE FAMILY COURT ERNAKULAM IN IA 911 OF 2013 IN OS 2285 OF 2012. EXHIBIT P7. COPY OF THE COMMON ORDER DATED 30.04.13 PASSED BY THE FAMILY COURT, ERNAKULAM IN IA 3636/12 AND IA 3637/12 IN OP 2285 OF 2012. EXHIBIT P8. COPY OF THE ORDER DATED 02.08.13 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT 1, ALUVA IN MC 108 OF 2012. EXHIBIT P9. COPY OF THE B DIARY IN ORIGINAL SUIT OF THE FAMILY COURT, ERNAKULAM IN OP 2285 OF 2012. EXHIBIT P10.COPY OF THE PETITION G.OP NO.437 OF 2010 DATED 07.02.03 SUBMITTED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM. EXHIBIT P11.COPY OF THE INTERIM PETITION DATED 07.02.13 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM ALONG WITH G.OP NO.437 OF 2013. EXHIBIT P12.COPY OF THE OBJECTION DATED 25.03.13 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM IN IA IA 699/13 IN G.OP NO.437 OF 2013. EXHIBIT P13. COPY OF THE B DIARY IN ORIGINAL SUITS OF THE FAMILY COURT, ERNAKULAM. EXHIBIT P14. COPY OF THE JUDGMENT DATED 07.01.14 PASSED BY THE FAMILY COURT, ERNAKULAM IN OP 437/13. EXHIBIT P15. COPY OF THE PAY ORDER NO.248520 AND 248511 DATED 28.04.14. EXHIBIT P16. COPY OF THE LETTER NO.LSL:WL:12534/VI/2015/CIVILIAN DATED 02.05.14 OF THE HEADMISTRESS OF THE LAWRENCE SCHOOL, OOTY. EXHIBIT P17. COPY OF THE LETTER NO.LSL:WL:12534/VI/2015/CIVILIAN DATED 02.05.14 OF THE HEADMISTRESS OF THE LAWRENCE SCHOOL, OOTY. OP (FC).No. 339 of 2014 (R) : 2 : EXHIBIT P18. COPY OF THE PAY ORDER NO.248523 AND 248521 DATED 28.04.14. EXHIBIT P19. COPY OF THE LETTER DATED 15.05.14 OF THE DIRECTOR OF CLIFF NURSERY AND PRIMARY SCHOOL. EXHIBIT P20. COPY OF THE COMPLAINT DATED 14.05.14 SUBMITTED BY THE PETITIONER BEFORE THE ASSISTANT COMMISSIONER OF POLICE THRIKKAKARA. EXHIBIT P21. COPY OF THE PETITION IN OP 949 OF 2014 DATED 16.05.14 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM. EXHIBIT P22. COPY OF THE INTERIM PETITION DATED 31.05.14 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM IN OP 949 OF 2014. EXHIBIT P23. COPY OF THE COMMON ORDER DATED 13.06.14 PASSED BY THE FAMILY COURT, ERNAKULAM IN IA 1819/14 AND IA 1821/14 IN Original Petition NO.437 OF 2013. EXHIBIT P24. COPY OF THE ORDER DATED 13.06.14 PASSED BY THE FAMILY COURT ERNAKULAM IN IA 2044/14 OP NO.949/14. EXHIBIT-P25. TRUE COPY OF THE ORDER DT.30.03.13 PASSED BY THE FAMILY COURT AT ERNAKULAM IN I.A.NO.699/2013 N O.P.NO.437/13. EXHIBIT-P26. TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER'S FATGHER BEFORE THE ASSISTANT COMMISSIONER OF POLICE, THRIKKAKARA DT.7.5.14. ## RESPONDENT'S EXHIBITS --------------------- EXT.R1: APPLICATIONS FILED BY ME IN I.A.NO.1819/2014 IN O.P.NO.437/13. EXT.R2: APPLICATIONS FILED BY ME IN I.A.1821/2014 IN O.P NO.437/13. EXT.R3: THE COUNTER AFFIDAVIT FILED IN I.A.NO.2044/14 IN O.P.NO.949/14. EXT.R4: LETTER ISSUED BY THE CLIFF NURSERY AND PRIMARY SCHOOL DT.13.5.14. EXT.R5: REPORTS OF ACHIEVEMENT OF THE MINOR AAHIL ABDUL SATHAR DT.26.3.13. EXT.R6: REPORTS OF ACHIEVEMENT OF THE MINOR AAFREEN ABDUL SATHAR DT.25.3.13. EXT.R7: OBJECTION FILED IN O.P.949/2014. P.S TO JUDGE **T.R.RAMACHANDRAN NAIR & P.V ASHA, JJ. ----------------------------------------------------O.P(F.C) No.339 of 2014-R ---------------------------------------------------Dated this the 14[th] day of August, 2014** ## **J U D G M E N T** ## Asha, J. The father of two minor children Aahil and Aafreen, aged 9 years and 7 years, studying in the 5[th] and 3[rd] standards respectively, has filed this Original Petition challenging the interim orders granted by the Family Court, Ernakulam, in I.A.No.2044/2014 in O.P No.949/2014, by which the custody of minor children has been granted to the respondent/mother with visitation rights to petitioner on Second Saturday and Sunday, and setting aside the exparte orders issued in O.P.No.437 of 2014. 2. The circumstances leading to the impugned orders are as follows. The petitioner and respondent got married on 11.09.2003. The petitioner was employed as Electronics Engineer in Dubai. The respondent was also employed in Dubai after acquiring her B.Tech. Degree, even before the marriage. After the marriage, the petitioner returned to Dubai on **O.P(F.C) No.339 of 2014-R** 2 14.10.2003. Thereafter, the respondent also joined him and started living together. The boy child Aahil was born on 23.11.2004 and the girl child Aafreen was born on 07.09.2006. They continued in Dubai till the year 2009. In 2009, the respondent returned to Ernakulam and admitted the children in Choice School, Tripunithura. By 2011, the petitioner also returned from Dubai to join the family. 3. The parents of the petitioner are in Olavakkode in Palakkad District and parents of the respondent are in Muvattupuzha in Ernakulam district. After the marriage, certain properties were acquired in the joint name of petitioner and respondent. Claims are raised by each other, saying that those properties are acquired utilising the funds of either of them/jointly. The petitioner joined the business of his brother in Palarivattom while the respondent joined for M.Tech. in CUSAT. Difference of opinion started arising among them, which aggravated by November, 2012. According to the petitioner, the respondent has been undergoing treatment for mental disorder. She was adamant in continuing in Ernakulam without joining his parents at Olavakkad despite repeated requests. ## **O.P(F.C) No.339 of 2014-R** 3 4. While so on 16.11.2012, when the respondent was doing her project work in NPOL and was residing at Kakkanad, she went to her parents house at Muvattupuzha taking the children with her, after filing a petition before the Kalamassery Police Station against the respondent and his father alleging offences under Section 498 A of IPC. Another petition was filed before Judicial First Class Magistrate Court, Aluva, as M.C.No.108/12 under Section 12 of the Domestic Violation Act. The complaint filed before the Police Station is stated to be closed as unfounded as per Ext.P4 on 15.02.12. In M.C.No.108/12, an interim order was passed on 21.05.2013 as per Ext.P5 order directing the petitioner to grant monthly maintenance to each of the children @ Rs.5,000/-. The respondent/mother had filed another petition before the Family Court as O.P.No.2285/12 for recovery of her properties including gold ornaments, along with petitions for attachment and injunction against the petitioner from alienating the properties. The respondent had alleged that the petitioner was taking steps to alienate the property acquired in their joint name and gold ornaments to the tune of 100 sovereigns in addition to the pocket 4 **O.P(F.C) No.339 of 2014-R** money - given to her at the time of marriage to the tune of Rs.9 lakhs, which were in the custody of the petitioner. Interim orders of injunction and attachment of properties were granted. After hearing both sides the interim orders of injunction and attachment were modified as per Ext.P7 order dated 30.04.2013 seeing that the properties were in the joint name and asking the petitioner to furnish an undertaking not to alienate the property, while lifting the attachment that has been ordered in respect of one item of property on condition that he shall furnish security to the tune of Rs.34 lakhs. In the meanwhile, the petitioner had also filed Guardian O.P No.437 of 2013, in February, 2013, seeking permanent custody of the children. The matters were being hotly contested between the parties. 5. According to the respondent, there had been settlement talks for reunion initiated at the instance of a lawyer and on her advice the respondent wife decided not to prosecute the cases, filed by her, in order to have a permanent settlement over the issues between them. O.P.No.2285 of 2012 was thus dismissed as not pressed on 6.5.2013. M.C.No.10 of 2012 was also dismissed as not pressed on 02.08.13. She remained absent **O.P(F.C) No.339 of 2014-R** 5 in O.P No.437 of 2013 filed by the petitioner also and was set exparte on 31.10.2013. Therefore, by Ext.P14 judgment dated 07.01.2014, O.P No.437 of 2013 was allowed granting the petitioner permanent custody of the minor children. It is stated that the respondent had given the children to the petitioner after their classes were over on 28.03.2014. The petitioner took the children to Palakkad and after 1 ½ months of stay with his parents, he took the children to Ootty and admitted them in Cliff Nursery and Primary School in Ootty for preparing them to get admission to the Lawrence School, Love Dale for the Academic Year commencing from 2015. According to him after appearing in the suitability test, the children were admitted in the Boarding School in Ootty, spending about Rs.4 lakhs. 6. While so, the respondent, who was unaware of the whereabouts of children, went in search of them and approached the school authorities and met the children on 12.05.2014 in the boarding after the Headmistress got permission from the petitioner. On 13.05.2014 she took the children with her from the school and came to Ernakulam. At this stage, petitioner filed a complaint against her before the Thrikkakara Police Station **O.P(F.C) No.339 of 2014-R** 6 alleging that she abducted the children in violation of the court orders. Immediately thereafter he filed another O.P.No.949 of 2014 under Section 25 of the Guardian & Wards Act against the respondent for enforcing the orders passed in O.P.No.437 of 2013 and for a direction to return the children to the petitioner and to leave them at Cliffs School. 7. In the meanwhile, the respondent/mother had filed petitions for setting aside the exparte orders passed against her in O.P.No.437 of 2013. After hearing the parties, the Family Court passed Ext.P23 order dated 13.06.14 setting aside the exparte decree, taking note of the circumstances explained by her to remain exparte in the matter, on account of the concerted efforts for conciliation between the parties on intervention by a lawyer. By that time, the schools reopened and the children started attending their classes in Choice School, Tripunithura. The learned Judge of the Family Court had an interaction with the children and found that they were happy with their present school, namely, Choice School, Tripunithura, and in the company of their mother. At the same time, it was found that they did not dislike the company of their father. Considering the overall **O.P(F.C) No.339 of 2014-R** 7 circumstances, with the view that predominant consideration should be given to the welfare, health, pleasure and the life of the children, the Family Court ordered that they should not be disturbed from the present custody with the mother, at their tender age. At the same time, visitation rights were granted to the father. Accordingly, it was ordered that the petitioner can have access to the children on every Second Saturday and Sunday and during the school vacations. 8. It is as against the above interim order passed by the Family Court that the petitioner approached this Court. 9. The respondent filed a detailed counter affidavit denying the allegations against her, disputing the claims raised in the O.P and explaining the circumstances which led to the complaints, petitions and the order of the Family Court. Allegations as to her mental disorder are denied and accusations are levelled against the petitioner. 10. We heard Sri Abdul Latiff, the learned counsel appearing for the petitioner and Sri Sreelal Warriar and Smt.Sadhanakumari, appearing for the respondent, raising claims for custody of the minor children for their respective 8 **O.P(F.C) No.339 of 2014-R** parties with the support of a number of decisions of this Court and the Hon'ble Supreme Court. After hearing the matter, we felt that an interaction with the children as well as the parties are required in the matter. 11. Accordingly on 25.07.2014 we had an interaction with the children alone, thereafter in presence of their mother and thereafter in presence of their parents together. We found that the children felt very much comfortable and happy with the present arrangement. Both of them like to study in the Choice School, Tripunithura, residing with their mother. It appeared to us that both the children actually like to be in the joint custody of the parents. Both the parents are well educated. The father is an Engineer working abroad who stated that he will be able to come home very often without restrictions. The respondent/mother is a Post graduate with M.Tech., running her own business. Both of them appeared to be very much concerned about the future of their children. The respondent did not have any objection for the children being given in the custody of father during holidays without disturbance to their studies, provided the children are willing. Both of them appear 9 **O.P(F.C) No.339 of 2014-R** to be very understandable and adjustable. Unfortunately it is seen that the petitioner has divorced the respondent by pronouncing talaq on 14.05.2014. In view of the fact that there were holidays for the school on 26.07.14, 27.07.2014 and 28.07.2014, and the petitioner liked to have the company of the children for Ramzan, we asked the children whether they were prepared to go with him at his residence at Palakkad, where his parents are living, for which the respondent/mother did not have any objection. Therefore we passed an order on 25.07.14 allowing the petitioner to take the children with him on the evening of 25.07.14, which was a Friday and to return them on 28.07.14 between 2 p.m and 3 p.m at the residence of the respondent/mother. 12. After hearing the arguments raised on behalf of either parties and after having interaction with the children, we find that the interim order passed by the Family Court does not require any modification with regard to the custody of the children with the mother, after setting aside the ex-parte order in favour of petitioner. It is well settled that the desire of the children coupled with their interest and welfare is the ## **O.P(F.C) No.339 of 2014-R** 10 paramount consideration in determining the rival claims for custody of minor children. Innumerable decisions were cited by either side in support of their claims to have the custody of the children. 13. Sri Abdul Latif, the learned Counsel appearing for the petitioner, relied on the judgments **Rosie Jacob vs Jacob A. Chakramakkal** reported in AIR 1970 SC 2090, **Sheila B. Das vs P. R. Sugasree** , reported in (2006) 3 SCC 62, **Shaleen Kabra vs Shiwani Kabra** reported in (2012)5 SCC 355, wherein the Honourable Supreme Court granted custody of the children to the father. In all these cases, it was held that the paramount consideration, while deciding the claim for custody of minor children shall be their interest and welfare. The decision in each of the cases depends upon the facts and circumstances arising in the respective cases. There is no hard and fast rule that the custody should be given either to the father or mother. What is important is that the children of tender age who are in the formative stage of their life, should be provided with an atmosphere conducive to their well-being, with a view to promote their physical and mental health inculcating in them a **O.P(F.C) No.339 of 2014-R** 11 sense of emotional, mental and physical security, simultaneously satisfying their educational needs. In all these cases it is seen that orders were passed after interaction with children and after ascertaining their likes and dislikes. 14. Sri. Sreelal Warrior , learned counsel appearing for the respondent on the other hand relied on the judgement in **Saharabi Vs P Mahammad** reported in ILR 1998 (1) 24 and **Gayatri Bajaj vs Jithen Bhalla** reported in AIR 2013 S C 102, in order to assert the right of the mother to have the custody of the children. In these cases also custody was given, after ascertaining the wishes of the children after interaction with the children. It has been categorically held in all these cases that the most important factor is the desire, interest and welfare of the minor which is crucial and ultimate consideration that must guide the determination by the court. In the midst of the ego clashes and fights between father and mother, the children shall not be compelled to shuttle from one abode to another. 15. During our interaction with the children, both of them expressed their displeasure over their migration to and stay in the boarding school far away from their mother. The petitioner is 12 **O.P(F.C) No.339 of 2014-R** stated to be employed presently in Abudhabi. The respondent mother is stated to be running a business concern in Ernakulam and earning income. As we have already mentioned earlier, the security of the children is always in the combined custody of parents. Unfortunately, as the petitioner has already pronounced Talaque and divorced the respondent. Therefore, what is possible is to retain the children in the company and custody of the mother, under whom the children feel happy, safe and secured. In the present case, both the petitioner and the respondent - the father and mother, appear to be very much concerned about the children. Having regard to the tender age of the children of 9 and 7 years, especially when the girl child is of 7 year old, we find that the togetherness of the siblings under the care and protection of their mother is very much desirable for their welfare. The recurrent appearances in courts in the midst of the fight between the parents, and meeting of either of their parents in the school make them depressed. Therefore, as far as possible, it is necessary to avoid such circumstances. We find that the respondent/father will be able to get the company of the children from the respondent/mother on friendly terms itself **O.P(F.C) No.339 of 2014-R** 13 provided, there is no disturbance to their studies and extra curricular activities. 16. In view of the facts which we could gather from the interaction with the parties, we find that the order passed by the Family Court is perfectly in accordance with law and in due consideration of the welfare of the children, by retaining their custody with the respondent/mother. However, we find it necessary to modify the visitation rights given to the petitioner/father in the interim order passed on 13.06.2014 by the Family Court. The petitioner will be free to take the children with him from a venue mutually agreed between the petitioner and the respondent, not being the school, on alternate Saturdays by 9 a.m and he shall return the children by 4 p.m on Sunday provided, the Saturday is not a working day for the school. In addition to this, he will be entitled to have the company of the children during the first half or second half of the vacations (for Onam, Christmas and Summer), at the convenience of both the parties as well as the children on mutual agreement on the dates, with prior intimation to either side. At any rate, the children shall be returned to the respondent at her residence or 14 **O.P(F.C) No.339 of 2014-R** a venue agreed to between them, on the forenoon of the previous day of the date of reopening of the school, in case the petitioner opts to have them in the second half. 17. Apart from the above modification, we do not find it necessary to disturb the orders passed by the Family Court on 13.06.2014 in I.A.No.2044 of 2014 in O.P.939 of 2014 or I.A.No.1819/2014 or 1821/2014 in G.O.(P) No.437/2013. The O.P(F.C) is disposed of as above. We make it clear that the Family Court will be free to pass appropriate orders in the O.Ps after hearing the parties, on merits. _Sd/-_ _**T.R.RAMACHANDRAN NAIR Judge**_ _Sd/-_ _**P.V.ASHA Judge**_ rtr/