Jashim v. Thanooja

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 16TH DAY OF AUGUST 2012/25TH SRAVANA 1934 OP (FC).No. 2161 of 2012 (R) ---------------------------I.A.No.2339 of 2012 and I.A.No.2117 of 2012 in G.O.P. No.889 of 2009 of FAMILY COURT,THRISSUR PETITIONER(S): -------------------- JASHIM, AGED 34 YEARS SON OF KALEETH, MAMMASRAILLATH HOUSE MACHERIPPADI DESOM, VENKIDANGU VILLAGE CHAVAKKAD TALUK, TRICHUR-680510. BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENT(S): ------------------------ THANOOJA D/O.SHARAFUDDIN, KONGANAMVEETTIL HOUSE POVATHUR DESOM, BRAHMAKULAM VILLAGE CHAVAKKAD TALUK, PIN-680508. BY ADV. SRI.S.NIRMAL KUMAR THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 31.07.2012, THE COURT ON 16-08-2012 DELIVERED THE FOLLOWING: O.P.(F.C.) No.2161 of 2012 (R) ## A P P E N D I X ## PETITIONER'S EXHIBITS : EXHIBIT P1: TRUE COPY OF THE AGREEMENT DATED 16.5.2011 EXECUTED BETWEEN THE PETITIONER AND RESPONDENT EXHIBIT P2: TRUE COPY OF THE PETITION FILED BEFORE THE FAMILY COURT, THRISSUR BY THE PETITIONER AND THE RESPONDENT EXHIBIT P3: TRUE COPY OF THE ORDER OF THE FAMILY COURT, THRISSUR, DATED 18.6.2011 IN G.O.P.NO.889 OF 2009 EXHIBIT P4: TRUE COPY OF THE CERTIFICATE DATED 19.7.2011 ISSUED BY THE PRINCIPAL, SIR SYED ENGLISH SCHOOL, PUTHUMANNASEY TO ASHFAQ JASJHIM. EXHIBIT P5: TRUE COPY OF THE ORDER OF THE FAMILY COURT, THRISSUR, DATED 18.6.2011 IN G.O.P.NO.889 OF 2009 EXHIBIT P6: TRUE COPY OF COMPROMISE PETITION DATED 11.8.2011 FILED BEFORE THE FAMILY COURT, THRISSUR BY THE PETITIONER AND THE RESPONDENT EXHIBIT P7: TRUE COPY OF CERTIFICATE DATED 21.3.2012 ISSUED BY THE PRINCIPAL, SRI SYED ENGLISH SCHOOL, PUTHUMANNASERY TO ASHFAQ JASHIM EXHIBIT P8: TRUE COPY OF THE PETITION, IA 2117/2012, DATED 5.6.2012 FILED BEFORE THE FAMILY COURT, THRISSUR BY THE PETITIONER EXHIBIT P9: TRUE COPY OF THE OBJECTION DATED 25.6.2012 FILED BY THE RESPONDENT IN IA 2117/2012 BEFORE THE FAMILY COURT, THRISSUR. EXHIBIT P10: TRUE COPY OF THE PETITION IA 2339/2012, DATED 21.6.2012 BEFORE THE FAMILY COURT, FOR RELEASE OF THE PASSPORT OF THE MINOR CHILD. EXHIBIT P11: TRUE COPY OF THE FILED OBJECTION TO IA 2339/2012 BEFORE THE FAMILY COURT DATED 23.6.2012 EXHIBIT P12: TRUE COPY OF THE CERTIFIED COPY OF THE ORDER PASSED IN IA 2339/2012 DATED 28.6.2012 BY THE FAMILY COURT, THRISSUR EXHIBIT P13: TRUE COPY OF ORDER OF THE FAMILY COURT, THRISSUR IN IA 2117/2012 EXHIBIT P14: TRUE COPY OF THE TRANSFER PETITION, OP.68/2012, FILED BEFORE THE FAMILY COURT, THRISSUR EXHIBIT P15: TRUE COPY OF THE AFFIDAVIT SWORN TO BY KUNHALI, DATED 3.7.2012. EXT.P16 : TRUE COPY OF THE COUNTER AFFIDAVIT DATED 6.8.2011 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THIRUSSUR IN I.A.NO. OF 2011 IN GOP NO.889 OF 2009. EXT.P17 : TRUE COPY OF OBJECTION DATED 9.8.2011 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THRISSUR IN I.A.NO.5220 OF 2011 IN GOP NO.889 OF 2009. EXT.P18 : TRUE COPY OF RECEIPT NO.2421 ISSUED TO ASHFAQ JASHIM FROM SIR SYED ENGLISH SCHOOL, PAVARATTY TOWARDS PAYMENT OF RS.1200/- EXT.P18(A) : TRUE COPY OF RECEIPT NO.9270 DATED 10.7.2012 ISSUED TO ASHFAQ JASHIM FROM SIR SYED ENGLISH SCHOOL, PAVARATTY TOWARDS PAYMENT OF RS.200/- ## RESPONDENTS' EXHIBITS EXT.R1 : TRUE COPY OF THE LETTER APPOINTING THE RESPONDENT AS HUMAN RESOURCES COORDINATOR IN A1 MASHREQ GROUP FOR ENGINEERING WORKS AT DOHA-QATAR. TGS (TRUE COPY) **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------O.P.(FC) No.2161 of 2012 ----------------------------------------------Dated 16[th] August, 2012.** ## **J U D G M E N T** ## **Joseph Francis, J.** The above Original Petition (Family Court) is filed under Article 227 of the Constitution of India with the following prayer : Issue appropriate order or direction quashing Exts.P12 and P13 orders passed by the Family Court, Thrissur in I.A.No.2339 of 2012 and I.A.No.2117 of 2012 in G.O.P. No.889 of 2009. 2. The facts of the case are briefly as follows : The Nikah between the petitioner and the respondent herein was solemnized on 18.8.2006 in Dubai and the marriage ceremony was held on 3.12.2006 at Poovathoor in Thrissur District. In the wedlock, a son, viz., Ashfaq was born on 6.2.2008. Even before giving birth to the child, both the petitioner and the respondent came down to Kerala. After the child was born, the petitioner again went back to Abu Dhabi and the respondent followed him. Their relationship became strained and the petitioner returned to Kerala. The respondent also came back with the child in the first week of March, 2009. Thereafter, the petitioner and the respondent were living separately. The petitioner filed OP(FC). 2161/12 2 G.O.P.No.889 of 2009 before the Family Court, Thrissur for the custody of the child. During the pendency of the Original Petition, the respondent went abroad with the child. Hence, the petitioner was constrained to file W.P.(Crl) No.549 of 2009 before this Court for the issue of a Writ of Habeas Corpus for production of the child. This Court dismissed the Writ Petition (Crl) on 17.12.2009 relegating the petitioner to the Family Court, where the G.O.P. was pending. Since the relationship between the petitioner and the respondent was irretrievably broken, they decided to separate. They entered into an agreement incorporating the terms and conditions regarding the custody of the child. On 18.6.2011, incorporating the terms and conditions, the parties filed compromise petition before the Family Court. In the light of the compromise the Family Court decreed G.O.P.No.889 of 2009 on 18.6.2011 as follows : “Permanent custody of the minor child Ashfaque is given to the respondent/mother reserving the petitioner's right to have temporary custody between 10 a.m. and 6 p.m. of all Sundays, first five days of Onam and Christmas vacations and 15 days each in April and May during summer vacation as stated in the compromise petition. In addition to the above the petitioner is entitled to have OP(FC). 2161/12 3 custody of the child on special occasions also as stated in the compromise petition. The respondent shall not take the minor child out of India for one year from this date. If the respondent intends to take the minor child out of India after one year she must inform the petitioner and also obtain permission from the court. The petitioner and his family members are permitted to see the minor child from abroad. When the child stays there and the petitioner is entitled to get custody of the minor child for two months during vacation such cases as stated in the compromise petition. Permission is granted to the petitioner to have contact with the child over phone. Compromise petition shall form part of the decree.” 3. The petitioner pronounced Talaq three times on 1.6.2011 and 20.6.2011 and communicated the same to the respondent. The petitioner alleges that in violation of the conditions of the compromise decree, the respondent took the child to Qatar without informing the petitioner and without the permission of the Court. The petitioner filed I.A.No.4534 of 2011 dated 12.7.2011 before the Family Court to impound the passport of the child. He also filed I.A.No.4532 of 2011 for a direction to the Police to get the custody of the child. I.A.No.4531 of 2011 was for permanent custody. I.A.No.4533 of OP(FC). 2161/12 4 2011 was filed for contempt of court. Alleging that the child was illegally taken by the respondent, petitioner again approached this Court by filing W.P.(Crl) No.355 of 2011. Both parties were directed to appear before the Family Court, Thrissur on 3.8.2011. The child was produced before the Family Court. The parties filed another compromise dated 11.8.2011. Accepting that compromise, the Family Court passed an order in G.O.P. No.889 of 2011 dated 12.8.2011, modifying the order dated 18.6.2011 and that Original Petition was closed. 4. The petitioner alleges that the compromise decree dated 12.8.2011 was passed when the respondent was residing in the native place. It is also alleged that subsequently, the respondent married one Abdul Samad in April, 2012. Now, the respondent is residing with her husband in the family house of the respondent in Qatar. Hence, the petitioner filed a petition not to release the passport which was impounded by the court. Since the respondent is residing with her husband Abdul Samad after the marriage, the child is looked after by her mother at Poovathoor. The petitioner filed OP(FC). 2161/12 5 I.A.No.2117 of 2012 before the Family Court, Thrissur for permanent custody of the child, against which objection was filed by the respondent that she obtained a job in Qatar and hence she had gone to Qatar entrusting the child with her mother. The said interlocutory application was dismissed by the Family Court, Thrissur as per order dated 28.6.2012, which reads as follows : “Perused records. In view of the compromise decree dated 12.8.2011 and considering the welfare and well being of the minor, the child should be with the R1 mother. Hence this petition is not maintainable. Hence interlocutory application 2117/12 is dismissed. No costs.” Ext.P13 is the copy of that order. The respondent filed I.A.No.2339 of 2012 before the Family Court for release of the passport of the child. The petitioner filed objection to the same. The Family Court, as per order dated 28.6.2012 allowed the petition in view of the compromise dated 12.8.2011 and ordered to return the passport to the respondent(petitioner therein). Ext.P12 is the copy of that order. This Original Petition (Family Court) is filed by the petitioner in the G.O.P. to set aside Exts.P12 and P13 orders. OP(FC). 2161/12 6 5. Heard the learned Senior counsel for the petitioner and the learned counsel for the respondent. 6. The learned Senior counsel for the petitioner submitted that the prior history of the case would show that twice the respondent had gone to Qatar with the child, without seeking permission from the Family Court. The learned Senior counsel also submitted that when the respondent had not remarried, the petitioner had agreed for giving the custody of the child to the respondent and for taking the child abroad after seeking permission from him as well as from the Family Court. The learned Senior Counsel for the petitioner further submitted that the respondent had already married Abdul Samad, whose third marriage was with the respondent and in the changed circumstances, the petitioner is not interested in giving custody of the child to the respondent since she is not taking care of the welfare of the child. The learned counsel for the respondent supported the orders under challenge. 7. The learned Senior counsel for the petitioner invited our attention to the decision reported in **Vikram Vir Vohra v. Shalini Bhalla** [2010 (2) KLT SN 20 (Case No.25) OP(FC). 2161/12 7 ## SC], in which it was held as follows : “In a matter relating to custody of a child, this Court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing stages of his or her life. That is why custody orders are always considered interlocutory orders and by the nature of such proceedings custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child.” ## 8. In paragraph 52 of the decision reported in **Nil Ratan Kundu v. Abhijit Kundu** [(2008) 9 Supreme Court Cases 413], it was held : “In our judgment, the law relating to custody of a child is fairly well-settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a Court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided _solely_ by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising _parens patriae_ jurisdiction and is expected, _nay_ bound, to give due weight to a child's ordinary comfort, contentment, health, OP(FC). 2161/12 8 education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and Indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor”. ## 9. In paragraphs 50 and 51 of the decision reported in Gaurav Nagpal v. Sumedha Nagpal [(2009) 1 Supreme Court Cases 42], it was held : “50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in _Mousami Moitra Ganguli's case_ , the Court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others. 51. The word “welfare” used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of OP(FC). 2161/12 9 the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its _parens patriae_ jurisdiction arising in such cases”. 10. In the present case, the parties had entered into two compromises on two different dates, agreeing to give permanent custody of the child to the respondent/mother and visitation rights to the petitioner/father and his relatives. There is no dispute that the father of the respondent, in connection with his business, is settled in Abu Dhabi for the last about 30 years and he has shifted to Qatar recently. The respondent is also residing in Qatar. According to the petitioner, the respondent married Abdul Samad and they are residing in Qatar. But, the respondent contends that she has not married Abdul Samad and that she is residing with her father. The respondent filed counter affidavit contending that Abdul Samad is the son of her mother's sister. In the counter affidavit, it is also stated that the respondent has got an employment in Qatar and she is drawing a monthly salary of Rs.60,000/- and that she has arranged a visa for the child and also arranged school admission for the child in Qatar. OP(FC). 2161/12 10 11. The petitioner filed I.A.No.2117 of 2012 in G.O.P.No.889 of 2009 before the Family Court for permanent custody of the child, mainly for the reason that the respondent remarried Abdul Samad and she is residing permanently in Qatar, leaving the child in the native place. In this O.P.(FC), the petitioner has produced a copy of the agreement dated 16.5.2011, entered into between the petitioner and the respondent(Ext.P1), in which it is stated that after the divorce, both parties have the right to re-marry. It is an admitted fact that the marriage between the petitioner and the respondent is already dissolved by pronouncing Talaq by the petitioner. Therefore, even if the respondent has remarried Abdul Samad as contended by the petitioner, that is not a ground to modify or cancel the compromise decree in G.O.P.No.889 of 2009 dated 12.8.2011. As per the compromise decree, the respondent can take the child outside India, reside there and educate the child there and for that purpose, the respondent can receive back the passport of the child after 18.6.2012. The respondent filed I.A.No.2339 of 2012 on 21.6.2012 before the Family Court for getting back the passport, which was allowed OP(FC). 2161/12 11 as per the order dated 28.6.2012. Since that order was passed in consonance with the compromise decree, we find no reason to interfere with that order. There is no hard and fast rule in Mahomedan Law that the mother becomes disqualified for the custody of her minor child, the moment she remarries. There is no clause in the compromise decree disqualifying the respondent/mother regarding the custody of the child after her remarriage. In this case, the permanent custody of the minor child was given to the respondent/mother as agreed to by both parties reserving the visitorial rights of the petitioner. In the counter affidavit filed by the respondent, it is stated that while the petitioner was residing in Qatar, he began to harass and threaten the respondent and therefore, the father of the respondent filed a complaint against the petitioner before the Ambassador, Indian Embassy, Doha-Qatar and that complaint was withdrawn after the compromise decree was passed. Therefore, at present, the petitioner has no impediment in utilizing his visitorial rights regarding his minor child in Qatar. 12. The petitioner has no case that the compromise OP(FC). 2161/12 12 decree is vitiated by fraud, misrepresentation, misunderstanding or mistake. Therefore, the compromise decree operates as res judicata as also estoppel between the parties as there is no substantial change in the circumstances after the passing of the compromise decree. Therefore, we find no reason to set aside or modify Exts.P12 and P13 orders. Accordingly, this Original Petition (Family Court) is dismissed as it is without any merits. There is no order as to costs. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)