Mat.Appeal Nos.301 & 309/2019; In the High Court of Kerala at Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 12[TH] DAY OF AUGUST 2021 / 21ST SRAVANA, 1943 MAT.APPEAL NO. 301 OF 2019 AGAINST THE JUDGMENT IN OP 227/2017 OF FAMILY COURT, OTTAPPALAM, PALAKKAD** ## **APPELLANT/PETITIONER:** XXXX AGED 27 YEARS XXX BY ADVS. JACOB SEBASTIAN K.V.WINSTON ## **RESPONDENT/RESPONDENT:** XXX AGED 32 YEARS XXX. BY ADV SANTHEEP ANKARATH THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2021, ALONG WITH Mat.Appeal.309/2019, THE COURT ON 12.08.2021 DELIVERED THE FOLLOWING: Mat.Appeal Nos.301 & 309/2019 -:2:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 12[TH] DAY OF AUGUST 2021 / 21ST SRAVANA, 1943 MAT.APPEAL NO. 309 OF 2019 AGAINST THE JUDGMENT IN OP 226/2017 OF FAMILY COURT, OTTAPPALAM, PALAKKAD** ## **APPELLANT/PETITIONER:** XXX AGED 27 YEARS XXX. BY ADVS. JACOB SEBASTIAN K.V.WINSTON ## **RESPONDENTS/RESPONDENTS:** 1 XXX. AGED 32 YEARS XXX. 2 XXX AGED 58 YEARS XXXX. 3 XXX. AGED 62 YEARS XXX. BY ADVS. SRI.SANTHEEP ANKARATH THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2021, ALONG WITH Mat.Appeal.301/2019, THE COURT ON 12.08.2021 DELIVERED THE FOLLOWING: Mat.Appeal Nos.301 & 309/2019 -:3:- J U D G M E N T Dated this the 12[th ] day of August, 2021 ## Kauser Edappagath, J. The appellant in these appeals challenges the dismissal of two Original Petitions filed by her before the Family Court, Ottapalam: one for return of gold ornaments and cash; the other one for the appointment of guardian of the minor. 2. The appellant and the respondent in Mat.Appeal No.301/2019 (who is the first respondent in Mat.Appeal No.309/2019) are the divorced spouses now. Their marriage was solemnized on 24/12/2008 at Paramekkavu Temple at Thrissur. A boy child was born to them on 27/6/2010. The marriage was dissolved as per the decree in OP No.130/2018 on the file of the Family Court, Ottapalam. OP No.227/2017 was filed by the appellant for appointing her as the guardian of the minor child and OP No.226/2017 was filed for return of gold ornaments and cash. Those two original petitions were tried along with three other original petitions filed between the parties in the court below and a common judgment was passed. Both OP Mat.Appeal Nos.301 & 309/2019 -:4:- Nos.226/2017 and 227/2017 were dismissed as per the impugned judgment. Challenging the decree and judgment in OP No.226/2017, Mat.Appeal No.309/2019 has been preferred and challenging the decree and judgment in OP No.227/2017, Mat.Appeal No.301/2019 has been preferred. 3. We have heard Sri.Jacob Sebastian, the learned counsel for the appellant and Sri.Santheep Ankarath, the learned counsel for the respondents. 4. We refer the status of the parties as they are shown in Mat.Appeal No.309/2019, i.e., the appellant and the respondents. 5. The appellant is a dentist by profession. The first respondent is an M.B.A graduate and at present runs a business in imported wood at Sharjah. The second and third respondents are the parents of the first respondent. At the time of marriage, the appellant was studying for her graduation and the first respondent was working as accountant at Dubai. After completing the graduation, the appellant went to Dubai in April, 2009 and joined the first respondent. Admittedly, they lived together in Dubai along with their child till 27/9/2013. On 27/9/2013, the appellant admittedly came back to Kerala leaving the child with Mat.Appeal Nos.301 & 309/2019 -:5:- the first respondent. The appellant and first respondent give different stories for the reason to leave Dubai. According to the appellant, on 27/9/2013, the first respondent brutally assaulted her and threw her out of the flat at Dubai where they were residing and thereafter, he forcefully and deceitfully removed the child from her custody without her consent. According to the 1[st] respondent, on 24/9/2013, he happened to saw the immoral chatting of the appellant in her mobile phone with one Mr.Sarin Antony Peter, who was her paramour, and on scrutiny of the face book chat history of the appellant, he could realise that she was maintaining extramarital relationship with three persons including the one mentioned above. Then there was verbal altercations and quarrel between them at their flat and ultimately on 27/9/2013, she left Dubai leaving the child with him. Thereafter, the first respondent filed OP No.130/2018 for divorce on the ground of cruelty and adultery and the appellant filed OP No.225/2017 on the ground of cruelty. The first respondent has filed yet another original petition as OP No.129/2018 for return of gold ornaments and money. Above three original petitions were jointly tried along with the Original Petitions which are the subject matter of these Mat.Appeal Nos.301 & 309/2019 -:6:- appeals. The original petition filed by the first respondent for divorce on the ground of cruelty and adultery was allowed and a decree of divorce was granted. The original petition filed by the first respondent for return of gold ornaments and money was also dismissed. The original petition filed by the appellant for divorce was dismissed. 6. OP No.226/2017 was filed by the appellant seeking return of 122 sovereigns of gold ornaments or its equivalent value and `16,00,000/- from the respondents. It was alleged that she was given 122 sovereigns of gold ornaments by her mother at the time of marriage which were taken by the 2[nd] respondent from her on the next day of marriage and kept in a locker owned by the 2[nd] respondent. It was further alleged that the mother of the appellant who was examined as PW2 handed over a total sum of `16,00,000/- on different occasions to the respondents who misappropriated the same. In the counter statement filed by the respondents, they denied the entrustment and misappropriation of the gold ornaments and money. 7. To prove the possession, entrustment and misappropriation of gold ornaments and money, the appellant Mat.Appeal Nos.301 & 309/2019 -:7:- relies on her own oral evidence, the oral evidence of her mother who was examined as PW2, Ext. A1 marriage album and Ext. A7 bank pass book. It is pertinent to note that in the petition itself, the appellant has clearly pleaded the source of the gold ornaments. It is pleaded that the gold ornaments were purchased with the money raised by PW2 by disposing of a landed property situated in Cherthala given to her by her parents and also by prematurely closing down her SB account at the Palakkad Noorani Post Office. It is further pleaded that PW2 had also pledged her another landed property situated in Palakkad and raised a loan of `3,00,000/-. But, nothing has been produced to substantiate the above mentioned sources. There will, definitely, be documentary evidence to prove the same. PW1 has admitted that the entire gold ornaments were purchased from Malabar Gold, Thrissur. PW2 also deposed so. But no bill has been produced to show the purchase of gold ornaments. Even PW2 admitted that there is bill for the gold ornaments purchased. It is true that Ext. A1 marriage album would show that the appellant was wearing gold ornaments on the wedding day. The Division Bench of this Court in _**Mohammed Ali v. Raihanath**_ Mat.Appeal Nos.301 & 309/2019 -:8:- _**and Another**_ (2015 KHC 820) has held the practice of passing orders for return of gold ornaments merely by looking at photographs without considering the question whether claim is plausible is not permissible. Apart from the interested oral testimony of PW1 and PW2, there is nothing on record to show that the appellant had 122 sovereigns of gold ornaments at the time of her marriage. There is also no convincing evidence to prove the entrustment of the said gold ornaments with the 2[nd] respondent. The case of the appellant is that those gold ornaments were kept by the 2[nd] respondent in her locker. The appellant has not even attempted to prove that the 2[nd] respondent was maintaining such a locker. 8. Regarding the claim for return of money, the case of the appellant is that on four different occasions, her mother gave a total sum of `16,00,000/- to the respondents. Even the appellant admits that she came to know about the same only subsequently. According to PW2, on first occasion, she paid `5,00,000/- to the respondents 2 and 3, and on second occasion, again she paid `5,00,000/- to them. But she could not say the date on which the money was allegedly given. She further Mat.Appeal Nos.301 & 309/2019 -:9:- deposed that in the year 2012, she gave `3,00,000/- each to the first respondent on two occasions. She could not say the date of those payments also. No evidence has been adduced to prove the source of the said `16,00,000/-. Ext. A7 passbook would only show that PW2 availed a loan of `3,00,000/- during 2008 and it was closed in 2013. No independent evidence was examined to prove the handing over of `16,00,000/-. For all these reasons, we endorse the finding of the court below that the appellant failed to prove the possession and entrustment of gold ornaments as well as cash to the respondents. 9. In OP No.227/2017 filed by the appellant to appoint her as the guardian of the minor son, it is alleged that the first respondent stealthily grabbed the custody of the child from her on 27/9/2013 when she left Dubai. It is further alleged that she being the mother has a better claim for the custody of the child. It is also alleged that the first respondent is leading a wayward life and he is living at present with one Bincy and the child is not safe in his custody. The appellant has also alleged that the first respondent is suffering from mental disorder and is unfit to be appointed as the guardian of the child. Considering the welfare of Mat.Appeal Nos.301 & 309/2019 -:10:- the child, she has to be appointed as guardian, it was alleged. Per contra, the first respondent contended that the appellant was leading an adulterous life, that too with three men, which led to their separation and the future of the child would be at risk if she is appointed as the guardian of the child and the custody is entrusted to her. He contended that the child is well taken care of by him. If the child is removed from his custody, it would adversely affect the welfare of the child, it was contended. The court below after considering the rival contentions found that the first respondent is the fit person to be appointed as the guardian of the child in its best interest and, accordingly, the original petition filed by the appellant was dismissed. However, visitation right was granted to the appellant. 10. It is settled that the welfare of the child is of paramount consideration in matters relating to the guardianship and custody of the child. The first respondent is the father and natural guardian of the child. Admittedly the child is in the custody of the first respondent since 27/9/2013. At that time, the child was aged only 3 years. Now the child has attained 11 years. There is nothing on record to suggest that the child is in Mat.Appeal Nos.301 & 309/2019 -:11:- any way neglected or not taken care of by the father. The evidence on record would show that the child has been given proper care and education by the father. The child is now studying at a school in Sharjah. The learned counsel for the appellant has submitted that the appellant has now remarried and she is employed at Qatar. The divorce was granted mainly on the ground that the appellant was leading an adulterous life. Even though it is contended by the appellant that the first respondent is suffering from mental disorder and unfit to be appointed as the guardian of the child, there is nothing on record to substantiate the same. The first respondent is financially well off and he is running a business of his own at Sharjah. It has also come out in evidence that the first respondent is having his own house at Kerala. The learned Family Court Judge had interacted with the child and in the said interaction, the child expressed his desire to live with the first respondent. Considering all these aspects, we find no reason to upset the finding of the court below that the appellant cannot be appointed as the guardian of the minor child. 11. Couple divorced each other, not their child. The child Mat.Appeal Nos.301 & 309/2019 -:12:- needs the care, love and affection of both parents. The parent child relationship is a unique bond that nurtures the physical, cognitive, emotional and social development of the child. Parental affection shapes child's happiness in life. The Apex Court in _**Yashita Sahu v. State of Rajastan**_ [(2020) 3 SCC 67] held that even if the custody is given to one parent, the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. Recently, the Apex Court again in _**Amyra Dwivedi (Minor) through LRs v. Abhinav Dwivedi**_ [(2021) 4 SCC 698] has held that when the court grants visitation rights, these rights should be granted in such a way that the parent, who is granted the visitation right, can meet the child in an environment conductive to the parent and the child. 12. The Court below granted only a minimal visitation right to the appellant. The appellant was allowed to interact with the child from 10 a.m to 4 p.m only at the court premises during mid term and summer vacations. The learned Counsel for the appellant sought for custody during the entire summer and Mat.Appeal Nos.301 & 309/2019 -:13:- winter vacations. The learned Counsel for the respondents, on the other hand, submitted that considering the character and past conduct of the appellant, she shall never be given overnight custody. True, the divorce was granted mainly on the ground of adultery. There was a finding that the appellant/wife was leading an adulterous life. The said finding has become final as well. However, the proved infidelity or extramarital relationship cannot by itself be a ground to deny the visitation or contact right of the child to its mother so long as there is nothing to suggest that the mother carried the extramarital affair in front of the child and such relationship had any adverse impact on the child. One may not be a good wife; still, she can be a good mother. The child would require the love and care of the mother in the formative years as well as during adolescence. There is nothing on record to show that the child was in any way exposed to the extramarital affair of the mother and it had any adverse impact on the child. Thus, we are unable to accept the submission of the learned counsel for the first respondent that visitation right or overnight custody of the child cannot be given to the mother. As stated already, the appellant is employed at Qatar and the first Mat.Appeal Nos.301 & 309/2019 -:14:- respondent is employed at Sharjah. The parents of the appellant are at Kerala. Hence, we are of the view that an arrangement has to be made to provide the custody of the child to the appellant for few weeks in every summer and winter holidays. There shall also be an arrangement to give custody of the child to the parents of the appellant. 13. In the light of the above findings, we dismiss Mat.Appeal No.309/2019. We confirm the finding of the court below in OP No.227/2017 that the appellant cannot be appointed as the guardian of the minor child. However, we grant the following visitation and contact rights to the appellant in substitution of the visitation right granted in the impugned judgment in OP No.227/2017. (i) In every summer holidays of the school of the child, the first respondent shall bring the child to Kerala and hand over custody to the appellant for a total period of twenty days. The said twenty days period can be split up into two, i.e., ten days each with an interval of 5 days in between. The first respondent shall intimate the appellant one month in advance about his such visit to Kerala. Mat.Appeal Nos.301 & 309/2019 -:15:- - (ii) In the event the appellant visits Kerala during winter holidays, she shall intimate the said visit to the first respondent in advance and the first respondent shall bring the child to Kerala and hand over custody for a period of 7 days to the appellant. - (iii) In addition to the above, whenever the first respondent comes to Kerala with the child, he shall hand over the custody of the child to the grandmother for two days. - (iv) The appellant also is permitted to make video call through any available online platform to the child on every Thursday and Friday between 6.00 p.m and 7.00 p.m. (UAE time) The first respondent shall co-operate with the same. - Mat. Appeal No.301/2019 is allowed in part to the above extent. The parties shall bear their respective costs. ## **Sd/-** ## **A.MUHAMED MUSTAQUE** **JUDGE Sd/-** ## **DR. KAUSER EDAPPAGATH** ## **JUDGE** Rp ...16 Mat.Appeal Nos.301 & 309/2019 -:16:- The extract of the judgment mentioned in paragraph 12 at page 13 of the judgment dated 12.08.2021 in Mat.Appeal 301/2019 & Mat.Appeal 309/2019 stands clarified as follows as per order dated 13.09.2021 in IA 4/2021 in Mat.Appeal 301/2019 and IA 1/2021 in Mat.Appeal 309/2019: The sentences in the 12[th] paragraph on the 13[th] page of the judgment "True, the divorce was granted mainly on the ground of adultery. There was a finding that the appellant/wife was leading an adulterous life. The said finding has become final as well" - shall be clarified by adding that "the said finding has been set aside in Mat.Appeal Nos.921/2019 and 962/2019 dated 24/3/2021 and divorce was granted based on mutual consent." Sd/- **Joint Registrar** Mat.Appeal Nos.301 & 309/2019 -:17:- ## **APPENDIX OF Mat.Appeal No.301/2019** APPELLANT'S EXHIBITS: NIL RESPONDENT'S EXHIBITS ANNEXURE R1(a) TRUE COPIES OF THE PHOTOGRAPHS (2 NOS.) SHOWING MOTHER OF THE APPELLANT ALONG WITH THE CHILD TAKEN IN SOBHA CITY MALL