Fathimabi M. v. Muhammed Ashraff

**OP (FC)Nos.176/2019 & 649/2019** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941** **OP (FC).No.176 OF 2019** **AGAINST THE ORDER IN I.A NO.60/2019 IN O.P. 1141/2017 OF FAMILY COURT,KOZHIKODE** ## **PETITIONER/S:** **FATHIMABI M., AGED 36 YEARS D/O.KOYAMU, MANGATTIL HOUSE, NOW RESIDING AT MURINGAPURAI P.O., KOZHIKODE TALUK, KOZHIKODE DT. PIN-673602.** **BY ADV. SMT.K.V.BHADRA KUMARI** ## **RESPONDENT/RESPONDENT:** **MUHAMMED ASHRAFF, AGED 46 YEARS S/O.KUNJALAN, CHEERANGAL HOUSE, VILLUR, INDIANUR P.O., KOTTAKKAL, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676503.** **R1 BY ADV. SRI.P.SAMSUDIN R1 BY ADV. SRI.JITHIN LUKOSE** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 27-11-2019, ALONG WITH OP (FC).649/2019, THE COURT ON 12-12-2019 DELIVERED THE FOLLOWING:** **OP (FC)Nos.176/2019 & 649/2019** **2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941** **OP (FC).No.649 OF 2019** **AGAINST THE ORDER IN I.A. NO.1068/2019 & I.A. NO.1148/2019 IN O.P. 1141/2017 DATED 11-10-2019 OF FAMILY COURT,KOZHIKODE** ## **PETITIONER/PETITIONER:** **FATHIMABI, AGED 40 YEARS D/O.KOYAMU, MANGATTIL HOUSE, TIRUR TALUK, EDARIKKODU VILLAGE, MALAPPURAM DISTRICT, P.O.CHERUSSALA, PIN - 676 510.** **BY ADV. SMT.K.V.BHADRA KUMARI** ## **RESPONDENT/RESPONDENT:** **MUHAMMAD ASHRAF, S/O.KUNHALAN, AGED 45 YEARS, CHEERANGAL HOUSE, VILLOOR, KOTTAKKAL, INDIANOOR P.O., MALAPPURAM DISTRICT, PIN - 676 503.** **R1 BY ADV. SRI.P.SAMSUDIN R1 BY ADV. SRI.M.ANUROOP R1 BY ADV. SMT.S.K.SREELAKSHMY** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 27-11-2019, ALONG WITH OP (FC).176/2019, THE COURT ON 1212-2019 DELIVERED THE FOLLOWING:** **OP (FC)Nos.176/2019 & 649/2019** ## **3** **“C.R.”** ## **JUDGMENT** |**Dias,J.**| |---| |**The above original petitions are**| |**filed under Article 227 of the**| |**Constitution of India,challenging Ext.P15**| |**order passed in I.A 60/2019 and Ext.P13**| |**order passed in I.A No.1068/2019 in**| |**O.P.1141/2017 of the Family Court,**| |**Kozhikode.**| |**2.**<br>**The petitioner is the respondent**| |**in O.P. No.1141/2017. The original**| |**petition is filed by the respondent**| |**seeking permanent custody of their**| |**youngest son “Azadul Hind Fateh Ali**| |**Tippu”.**| |**3.It is the case of the petitioner in**| |**both the original petitions, that she is**| ## **OP (FC)Nos.176/2019 & 649/2019** **4** **the divorced wife of the respondent. They have three children in their wedlock. The respondent used to brutally harass and torture her. On 22.9.2014, the respondent drew her out of the matrimonial home. At that time she could only take the youngest child with her, as the older children were at school. Since the respondent denied custody of the older children to her, she filed O.P. No.716/2014 before the Family Court, seeking the permanent custody of the older children. By the order of this Court, the case was transferred from the Family Court Tirur to the Family Court, Malappuram.** **4. The petitioner has also averred that the respondent filed O.P. No.83/2017 before the Family Court,** **OP (FC)Nos.176/2019 & 649/2019** **5** **Tirur, seeking permanent custody of their youngest child. The Family Court by Ext.P3 order in I.A No.184/2017 directed the petitioner to provide visitation rights of the youngest child to the respondent from 10.00 a.m on every Saturday to 10 a.m on the ensuing Sunday.** **The petitioner challenged the order before this Court in O.P (FC) No.310/2017. This Court by Ext.P4** **judgment dismissed the original petition, holding that there was no scope for** **interference in the order.** **5. The petitioner has further averred that she, thereafter, filed I.A No.970/2017, seeking to modify Ext.P3 order on the assertion that she had secured a temporary employment in Karassery near Mukkom. However, the** **OP (FC)Nos.176/2019 & 649/2019** **6** **Family Court dismissed the application, which was again challenged before this Court in O.P (FC) No 452/2017. This Court by Ext.P7 judgment dismissed the original petition directing the petitioner to comply with Ext.P3 order till the disposal of the case.** **6. The petitioner has also pleaded that she again filed I.A No.1450/2017 (Ext.P8) seeking to restrict the visitation rights of the respondent to twice a month during day time. The Family Court by Ext.P9 order dismissed the application in view of the findings in Ext.P7 order of this Court. The petitioner challenged Ext.P9 order before this Court in O.P(FC) No.602/2017. This Court by its interim order directed the petitioner to hand over the youngest** **OP (FC)Nos.176/2019 & 649/2019** **7** **child to the respondent on every Friday from 10.30 a.m to 4 p.m before the Family Court, Malappuram and further directed the respondent to hand over the older two children to the petitioner.** **7. The petitioner has also averred that she used to hand over the custody of the youngest child to the respondent on every Friday, but unfortunately on 8.12.2017 the respondent abused her in vituperative language and tortured her. He, thereafter, on 26.1.2018, assaulted her and she was hospitalised. Police has registered a case against the respondent. The petitioner filed I.A 2/2018 seeking to modify Ext.P3 interim order.** **8. The petitioner has further pleaded that, when the case came up for** **OP (FC)Nos.176/2019 & 649/2019** **8** **hearing, this Court by Ext.P14 judgment set aside the order in I.A No.1450/2017 in O.P. No.83/2017. During this intervening period, this Court by its judgment in Tr.P.C Nos.508, 509 and 610 of 2017 transferred O.P.83/2017 and connected cases to the Family Court, Kozhikode. O.P.83/2012 was renumbered as O.P.1141/2017. The Family Court was directed to expeditiously dispose of O.P.83/2017. It was made clear that Ext.P3 was not modified.** **9. The petitioner also pleaded that the Family Court without considering the assertions in the affidavit, by Ext.P15 order dismissed the petitioner's application seeking modification. It is challenging Ext.P15 order that O.P (FC) No.176/2019 is filed.** **OP (FC)Nos.176/2019 & 649/2019** **9** **10. O.P(FC) 649/2019 is filed by the petitioner challenging Ext.P13 order, passed subsequent to Ext.P15.** **11. The respondent had filed I.A No.1148/2019 on the assertion that the petitioner has taken the youngest child to Mumbai, where she is undergoing a course, and she wants to pursue another course.** **12. The petitioner filed I.A** **No.1068/2019, seeking permission to take the child with her to Mumbai, where she is presently studying.** **13. The Family Court consolidated the hearing of both applications and by Ext.P13 order allowed I.A No.1148/2019 filed by the respondent and dismissed I.A No.1068/2019 filed by the petitioner. The petitioner was directed to hand over** **OP (FC)Nos.176/2019 & 649/2019** **10** **the custody of the youngest child to the respondent on 26.10.2019, for a period of six months or till such time the petitioner continues to stay in Mumbai. The petitioner was permitted to file an application for restoring the custody of the child to her, in the event she returned to Kerala before the expiry of six months.** **14. It is assailing Ext.P15 order in I.A No.60/2019 and Ext.P13 order in I.A Nos.1068/2019 and 1148/2019 that the above O.P (FC) Nos.176 and 649 of 2019 are filed.** **15. We have heard Adv.K.V Bhadra Kumari, the learned counsel for the petitioner and Adv. Muhammed Ashraf, the learned counsel for the respondent.** **16. The dispute in both the original** **OP (FC)Nos.176/2019 & 649/2019** **11** **petitions pertains to the custody of the youngest child of the parties.** **17. The point that arises for** **consideration in these original petitions, is whether Exts.P15 and P13 orders passed by the Family Court are legal and just?** **18. It is an admitted fact that the Family Court by Ext.P3, after considering the pleadings and materials on record, directed the petitioner to hand over interim custody of her youngest child to the respondent from 10.00 a.m on every Saturday to 10 a.m on the ensuing** **Sunday. This Court by Ext.P4 judgment upheld Ext.P3 finding that there was no scope for interference.** **19. The petitioner did not comply with Ext.P3 order, compelling the Family** **OP (FC)Nos.176/2019 & 649/2019** ## **12** **Court to issue a warrant of arrest against the petitioner to cause production of the child and be handed over to the respondent.** **20. The petitioner again challenged that order. This Court was by Ext.P7 judgment upheld the order, but reserved the right of the petitioner to move the Family Court, if there was any change of circumstances.** **21. On the strength of the observation, the petitioner filed I.A No.1450/2017 seeking modification of Ext.P3 order. The Family Court by order dated 5.10.2017 found that there was no scope for modifying the order in view of the Ext.P7 judgment. The petitioner challenged that Ext.P9 before this Court in O.P (FC) No.602/2017.** **OP (FC)Nos.176/2019 & 649/2019** **13** **22. This Court by Ext.P14 judgment held that the Family Court had passed Ext.P9 order without considering the rival contentions. Accordingly, Ext.P9 order was quashed and the Family Court was directed to consider the matter afresh, after affording both sides an opportunity of being heard. However, this Court categorically ordered that there is no modification in respect to Ext.P3 order confirmed by this Court in Ext.P4.** **23. As directed by this Court in Ext.P14 judgment, the Family Court by Ext.P15 order found that there are no circumstances warranting to change the venue for handing over and returning the child and that there was no reason to modify the order granting over-night** **OP (FC)Nos.176/2019 & 649/2019** ## **14** **custody of the child to the respondent and to limit the respondent's right to** **have custody of the child to two Saturdays in a month, instead of all Saturdays.** **24. From the above facts and sequence of events, the fact remains that the petitioner has been tenaciously attempting to circumvent Ext.P3 order and thwart the respondent from enjoying the custody of the child during all week ends. It is also to be noted that the** **Family Court had earlier ordered the permanent custody of the older two children with the respondent, reserving the visitation rights of the petitioner. The order in O.P. No.716/2014 is in force** **and has not been modified.** **25. The Family Court, while** **OP (FC)Nos.176/2019 & 649/2019** ## **15** **passing Ext.P3 order, directed the youngest child to be granted to the respondent because the older two children are with him, and it would secure the paramount welfare and best interest of the children, if the siblings are permitted to be in the company of each other, so that they can have a bonding.** **26. The Hon'ble Supreme Court in** _**Anjai Kapoor v.Baijal [(2009) 7 SCC 322]**_ **has held that in a battle for the custody of a child, the courts should see what would best serve the welfare and interest of the child, which is the sole and predominant criterion and not the legal rights of the warring parents.** **27. The petitioner instead of complying with the repeated directions of the Family Court and this Court, left** **OP (FC)Nos.176/2019 & 649/2019** **16** **with the child to Mumbai, without seeking prior permission from court, purportedly to pursue a course in hijama medicine in defiance to Exts.P3, P4, P4, P14 and P15 orders/judgments. The petitioner's action was in contravention to Section 26 of the Guardian and Wards Act, 1890.** **28. Section 26 of the Guardian and Wards Act, reads as follows:** **“Removal of ward from jurisdiction:** **(1) A guardian of the person appointed or declared by the court, unless he is the Collector or is a guardian appointed by will or other instrument, shall not, without the leave of the court by which he was appointed or declared,remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed.”** **OP (FC)Nos.176/2019 & 649/2019** ## **17** **29. In view of Section 26 of the Act and the fact that Exts P3, P4, P14 and P15 orders/judgments are in force, it was** **mandatory for the petitioner to have moved the court and sought prior permission before removing the child from the territorial jurisdiction of the Family Court.** **30. The Hon'ble Supreme Court in** _**Roxann Sharma v. Arun Sharma [(2015) 8 SCC 318]**_ **has deprecated the father in that case for leaving the jurisdiction of the court with the child, without notifying or taking permission. It was held that the act was violative of 26 of the Act, and prima facie, undermined the authority of court and may tantamount to contempt of court under the Contempt of Courts Act, 1971. The Supreme Court** **OP (FC)Nos.176/2019 & 649/2019** **18** **also held that Section 26 casts an omnibus embargo on a guardian from removing the ward from the limits of the jurisdiction of the court. It was further observed that often it becomes necessary that parents having custody of the child finds a more suitable employment somewherelese, but the entitlement of the left behind spouse has to be jurally investigated.** **31. We abjure ourselves from dwelling to the merit of the case or making any further observation in these cases, as we are conscious that the trial is pending before the Family Court.** **32. Notwithstanding Ext.P14 judgment passed by this Court as early as on 18.12.2018 to expeditiously dispose of the case, the case has not progressed.** **OP (FC)Nos.176/2019 & 649/2019** **19** **33. After removing the child to Mumbai, the petitioner filed I.A No.1068/2019 seeking permission of the Family Court seeking ratification of her misconduct. The respondent then filed I.A No.1148/2019, seeking a direction that the child be handed over to him while the petitioner pursues her studies in Mumbai.** **34. The Family Court rightly by Ext.P13 order ordered the child to be handed over to the respondent, while the petitioner pursues her studies in Mumbai and directed the petitioner to move** **appropriate application, as soon as she** **completes her course and returns to Kerala. The direction cannot be found fault with because if the child lives in Mumbai, a place alien to the child, he** **OP (FC)Nos.176/2019 & 649/2019** **20** **will have to adopt to a new culture, language, surroundings and above all denied the company and companionship of his siblings.** **35. As we have already found, the objective behind Ext.P3 order directing the petitioner to hand over the custody of the youngest child to the respondent on all Saturdays was to enable the child to mix and mingle and spend valuable time with his older siblings. We do not find any impropriety, illegality or irregularity in the arrangement. The converse would jeopardise the paramount welfare of the youngest child. The petitioner instead of accepting the arrangement, has been stubbornly resisting the same and repeatedly filing applications, to protect her vested** **OP (FC)Nos.176/2019 & 649/2019** ## **21** **interest and forgetting about the welfare of the child.** **36. In the light of our findings and Exts.P3, P4, P14 and P15 orders/judgments** **and the law declared by the Hon'ble Supreme Court, we do not find any error or illegality in Ext.P15 order in O.P (FC)176/2019 and Ext.P13 order in O.P** **(FC) 649/2019, warranting interference by this Court invoking its supervisory jurisdiction as enshrined under Article 227 of the Constitution of India.** **Accordingly, we confirm Ext.P15 and P13 orders. The Family Court shall make every endeavour to enforce Ext.P3 order** **in its letter and spirit.** **37. In the result, the following** **orders are passed:-** **OP (FC)Nos.176/2019 & 649/2019** **22** **(i) O.P.(FC) 176 and 649/2019 are dismissed.** **(ii) Ext.P15 order in O.P (FC) 176/2019 and Ext.P13 order in** **O.P.649/2019 are confirmed.** **(iii) The Family Court, Kozhikode is directed to dispose of O.P. No.83/2017 within a period of four months from the date of receipt of a copy of this judgment.** **(iv) Registry shall forward a copy of this judgment to the Family Court, Kozhikode.** **(v) The parties are directed to bear their respective costs.** **Sd/-K.HARILAL, JUDGE** **ma/11/12/2019 Sd/-C.S.DIAS, JUDGE /True copy/ P.S to Judge** **OP (FC)Nos.176/2019 & 649/2019** **23** ## **APPENDIX OF OP (FC) 176/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN O.P.NO.716/2014.** **EXHIBIT P2 A TRUE COPY OF THE F.I.R. NO.246/2015 OF KOTTAKKAL POLICE STATION REGISTERED AGAINST THE PETITIONER'S FATHER.** **EXHIBIT P3 A TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT, TIRUR IN I.A.NO.184/2017 IN O.P.NO.83/2017.** **EXHIBIT P4 A TRUE COPY OF THE ORDER IN O.P. (F.C) NO.310/2017 DATED 2.6.2017 PASSED BY THIS HON'BLE COURT. EXHIBIT P5 A TRUE COPY OF THE PETITION FILED BY THE PETITIONER AS I.A.NO.970/2017 BEFORE THE FAMILY COURT, TIRUR.** **EXHIBIT P6 A TRUE COPY OF THE I.A.NO.977/2017 IN O.P.NO.83/2017 FILED BY THE PETITIONER.** **EXHIBIT P7 A TRUE COPY OF THE JUDGMENT IN O.P. (F.C.)NO.452/2017 OF THIS HON'BLE COURT ON 30.8.2017.** - **EXHIBIT P8 A TRUE COPY OF THE MODIFICATION PETITION FILED BY THE PETITIONER, I.A.NO.1450/2017.** **EXHIBIT P9 A TRUE COPY OF ORDER PASSED BY THE FAMILY COURT, TIRUR IN I.A.NO.1450/2017 IN I.A.NO.184/2017 IN O.P.NO.83/2017 DATED 5.10.2017.** **EXHIBIT P10 A TRUE COPY OF THE WOUND CERTIFICATE ISSUED BY THE GOVT. TALUK HOSPITAL, MALAPPURAM DATED 8.12.2017. EXHIBIT P11 A TRUE COPY OF THE WOUND CERTIFICATE ISSUED BY THE GOVT. TALUK HOSPITAL, MALAPPURAM DATED 26.1.2018.** **OP (FC)Nos.176/2019 & 649/2019** **24** **EXHIBIT P12 A TRUE COPY OF THE F.I.R.NO.31/2018 OF MALAPPURAM POLICE STATION DATED 27.1.2018. EXHIBIT P13 A TRUE COPY OF THE F.I.R.NO.287/2018 OF MALAPPURAM POLICE STATION ALONG WITH FIRST INFORMATION STATEMENT. EXHIBIT P14 A TRUE COPY OF THE JUDGMENT PASSED IN O.P.(F.C.)NO.602/2017 DATED 18.12.2018. EXHIBIT P15 CERTIFIED COPY OF THE ORDER IN I.A.NO.60/2019 IN O.P.NO.1141/2017.** **OP (FC)Nos.176/2019 & 649/2019** **25** ## **APPENDIX OF OP (FC) 649/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE JUDGMENT IN O.P. (F.C.) NO.452/2017 PASSED BY THIS HON'BLE COURT ON 30/8/2017.** **EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT, TIRUR IN I.A.NO.1450/2017 IN I.A.NO.184/2017 IN O.P.NO.83/2017 DATED 5/10/2017.** - **EXHIBIT P3 TRUE COPY OF THE WOUND CERTIFICATE ISSUED BY THE GOVT. TALUK HOSPITAL, MALAPPURAM DATED 8/12/2017.** - **EXHIBIT P4 TRUE COPY OF THE WOUND CERTIFICATE ISSUED BY THE GOVT. TALUK HOSPITAL, MALAPPURAM DATED 26/1/2018.** - **EXHIBIT P5 TRUE COPY OF THE F.I.R.NO.31/2018 OF MALAPPURAM POLICE STATION DATED 27/1/2018.** - **EXHIBIT P6 TRUE COPY OF THE F.I.R.NO.287/2018 OF MALAPPURAM POLICE STATION ALONG WITH FIRST INFORMATION STATEMENT.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT PASSED IN O.P.(F.C.) NO.602/2017 DATED 18/12/2018.** - **EXHIBIT P8 TRUE COPY OF THE ORDER IN I.A.NO.60/2019 IN O.P.NO.1141/2017.** - **EXHIBIT P9 TRUE COPY OF THE PETITION IN I.A.NO.1068/2019 FILED BY THE PETITIONER.** - **EXHIBIT P10 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN I.A.NO.1068/2019.** - **EXHIBIT P11 TRUE COPY OF THE PETITION I.A.NO.1148/2019.** - **EXHIBIT P12 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER IN I.A.NO.1148/2019.** **OP (FC)Nos.176/2019 & 649/2019** **26** **EXHIBIT P13 CERTIFIED COPY OF THE COMMON ORDER IN I.A.NO.1068/2019 AND I.A.NO.1148/2019 IN O.P.NO.1141/2017 DATED 11/10/2019.**