Mubeena Latheef v. Mukhdar Ahammed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 31[ST] DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 O.P.(FC) NO. 133 OF 2023** **AGAINST THE ORDER DATED 09.03.2023 IN I.A.NO.1 OF 2022 IN O.P.(G&W) NO.1186 OF 2022 ON THE FILE OF THE FAMILY** **COURT, NEDUMANGAD** ## **PETITIONER:** - **1 MUBEENA LATHEEF AGED 28 YEARS** **D/O ABDUL LATHEEF, THOUFEEQ MANZIL, PAZHAVILA, PANGODE P.O., THIRUVANANTHAPURAM, PIN – 695609.** - **2* WWW** - **3* XXX** - **4* YYY** - **5* ZZZ** ***PETITIONERS 2 TO 5 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 31.03.2023 IN O.P.(FC) NO.133 OF 2023.** ## **BY ADV LATHEESH SEBASTIAN** 2 O.P.(FC) No.133 of 2023 ## **RESPONDENT:** **MUKHDAR AHAMMED** **AGED 40 YEARS CHERUCHITTUMKARA VEEDU, KANNAMPALLI BHAGOM, KAYAMKULAM P.O., ALAPPUZHA, PIN - 690106** **BY ADVS. P.A.ABDUL JABBAR MUHAMMED SHAFFI SHAHIM BIN AZIZ EHLAS HALEEMA C.K.** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.133 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The respondent filed O.P.(G&W) No.1186 of 2022 before the Family Court, Nedumangad. He sought a decree declaring his guardianship and allowing permanent custody of the children, Mariyam Mukhdar, aged 7 years and Marva Mukhdar, 5 years. In that original petition, the petitioner filed I.A.No.1 of 2023 seeking interim custody of the children. The Family Court as per the order dated 09.03.2023 allowed I.A.No.1 of 2023 and directed the petitioner to hand over custody of the children to the respondent from 5 p.m. every Friday till 5 p.m. on the ensuing Sunday. The petitioner challenges the said order in this Original Petition filed under Article 227 of the Constitution of India. 2. On 17.03.2023, notice on admission was directed to be served on the respondent by Special Messenger. On receipt of the notice, the respondent entered appearance through his learned counsel. 4 O.P.(FC) No.133 of 2023 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The children are aged 7 years and 5 years. Two younger children were in the womb and born subsequent to the filing of the original petition. The respondent contended that the petitioner purposefully left the marital home and later married another person. She left her parental home after entrusting the children with her parents on the pretext that she attends coaching classes for the civil services examination. Being the father and natural guardian, the claimed that he is entitled to get custody of the children in such circumstances. 5. As against the said contentions the petitioner would contend that the children are with her and it is totally false that she married again. She attends coaching classes from 10.00 a.m. till 1.00 p.m. only. The respondent is a drug addict. He meted out cruelty to the petitioner and that was why she had to leave the matrimonial home She accordingly 5 O.P.(FC) No.133 of 2023 contended that the respondent is not entitled to get custody of the children. 6. The Family Court after considering the attending circumstances, held that custody of the children shall be given to the respondent every weekend. The learned counsel appearing for the petitioner would submit that considering the tender age of the children, their overnight custody should not have been given to the respondent. It is further contended that the residence of the petitioner at Nedumangad is 150 Kilometers away from the residence of the respondent at Kayamkulam, and if the children are to be taken by the respondent every week to his house, that is prejudicial to the welfare of the children. 7. In **Nil Ratankundu and another v. Abhijit Kundu [(2008) 9 SCC 413],** the Apex Court held that principles governing custody of minor children are 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 6 O.P.(FC) No.133 of 2023 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, 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. 8. In **Vasudha Sethi and others v. Kiran V. Bhaskar and another [AIR 2022 SC 476]** the Apex Court held that, whenever the court disturbs the custody of one parent unless there are compelling reasons, the court will normally provide for visitation rights to the other parent. The 7 O.P.(FC) No.133 of 2023 reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right to have the company of both parents. Such orders are not passed only for protecting the rights of the parents. xx xx xx The court cannot accept the submission that, while applying the welfare principle, the rights of the mother or father need to be protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents. 9. In **Rohith Thammana Gowda v. State of Karnataka & others [AIR 2022 SC 3511]** the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an inquiry regarding custody of children. The Apex Court held that when couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child. While considering the claim for custody of a minor child, 8 O.P.(FC) No.133 of 2023 unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, ‘what would be the best interest of the child concerned’. In other words, welfare of the child should be the paramount consideration. The Apex Court thus consistently held that when deciding custody of a child, what is important is the welfare of the child. The court has to look into all the attending circumstances to decide at whose custody the welfare of the child can be best ensured. 10. From the materials available on record in this case it is evident that the children are with the petitioner. The allegation that she married another person is not supported by any material. Similarly, there is nothing on record to show that the petitioner is residing in a hostel. She asserts that her coaching class is from 10.00 a.m. to 1.00 p.m. and therefore she is able to look after her children. Her parents are admittedly available to look after the affairs of the children. In such circumstances, we are of the view that in the custody 9 O.P.(FC) No.133 of 2023 of the petitioner welfare of the children would be safeguarded. Hence, there is no imminent necessity to hand over custody of the children to the respondent. 11. The question is whether interim custody of the children need to be given to the respondent. In the light of the law laid down by the Apex Court in the aforesaid decisions, when the children are in the custody of one parent, visitation rights shall normally be provided to the other parent. The reason is that the child needs the company of both parents. Visitation rights to the parent living away are provided essentially to ensure the welfare of minors and for the protection of their right to have the company of both parents. Such orders are not passed only for protecting the rights of the parents. 12. In such circumstances, we are of the view that the order of the Family Court allowing interim custody of the children to the respondent cannot be said perverse or patently illegal. However, considering the distance between the places of residences of the petitioner and the respondent giving 10 O.P.(FC) No.133 of 2023 interim custody of the children to the respondent every week will cause much inconvenience to the children since it involves a tedious journey. Therefore we modify Ext.P4 order. Instead of every week, custody of the children Mariyam Mukhdar, aged 7 years and Marva Mukhdar, 5 years shall be given to the respondent from 10.00 a.m. on every second and fourth Saturday till 4.00 p.m. on the ensuing Sunday in each month. With the aforementioned modification to Ext.P4 order dated 09.03.2023 of the Family Court, Nedumangad in I.A.No.1 of 2023 in O.P.No.1186 of 2022, this Original Petition is disposed of. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(FC) No.133 of 2023 ## **APPENDIX OF OP (FC) 133/2023** **PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION IN O.P NO 1186/2022 OF FAMILY COURT, NEDUMANGAD EXHIBIT P2 TRUE COPY OF THE PETITION IN I.A NO 1/2023 IN O.P NO 1186/2022 OF FAMILY COURT, NEDUMANGAD EXHIBIT P3 TRUE COPY OF THE OBJECTION OF THE PETITIONERS TO EXT.P2 PETITION EXHIBIT P4 TRUE COPY OF THE ORDER OF THE FAMILY COURT, NEDUMANGAD DATED 09.03.2023 IN I.A NO 1/2023 IN O.P NO.1186/2022**