Nubla v. Saheer Rahman

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942** **OP (FC).No.539 OF 2020** **AGAINST THE ORDER IN E.A. NOS.357 OF 2019 & 130 OF 2020 IN E.P. NO.3 OF 2019 IN O.P.NO.1750/2014 OF THE FAMILY COURT, THRISSUR DATED 17.12.2020** ## **PETITIONER/RESPONDENT:** **NUBLA, AGED 31 YEARS D/O.LATHEEF, KATTILPARAMBATH HOUSE, PARAMBIL.P.O., CHERUVATTA, KOZHIKODE, PIN-673012.** **BY ADVS. SRI.JOHN K.GEORGE SMT.M.B.SHYNI SRI.DEEPAK RAJ SHRI.PRASANTH K.T.** ## **RESPONDENT/PETITIONER:** **SAHEER RAHMAN, AGED 42 YEARS S/O.ABDUL RAHMAN, MANAMKURICHIVEETTIL, PANAVALLY.P.O, CHERTHALA, ALAPPUZHA, PIN-688526.** **R1 BY ADV. SRI.ABDUL JALEEL.A R1 BY ADV. SMT.M.A.SULFIA** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 06.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (FC).No.539 OF 2020 2 ## **JUDGMENT** **Dated this the 6[th] day of January, 2021 K. Vinod Chandran, J.** **The petitioner, who is the mother of a minor child, challenge the order of the Family Court, Thrissur in Execution Application No.130 of 2020 in E.P.No.3 of 2019 in O.P. No.1750 of 2014. The Family Court directed the decree holderfather, who is the respondent herein, to have custody of the child from 10am on every second Saturday till 5pm on the following Sunday and also during the first half of Onam and Christmas Holidays as also 10 days each in April and May during the summer vacation. The petitioner impugns the order on the ground that the father, who has** OP (FC).No.539 OF 2020 3 **been granted custody, has perpetrated a sexual offence on the minor child.** **2. We have gone through the impugned order at Ext.P3, which narrates the history of the dispute, the allegation raised later and the detailed reasoning of the Family Court after interacting with the child. The decree was passed as early as on 29.07.2017 in the O.P filed by the father seeking custody of the minor son. The decree granted custody as has been detailed earlier from the order impugned. There were many litigations between the parties before the Family Court. The claim for maintenance raised by the petitioner-wife was allowed, but her claims for return of gold ornaments and divorce were rejected. The husband's prayer for restitution of** OP (FC).No.539 OF 2020 4 **conjugal rights was allowed and so was his application for custody of child in the manner stated earlier. The petitioner-wife was recalcitrant in complying with the decree, which forced the respondent-father to approach the Family Court with an execution petition.** **3. When the E.P. was filed alleging the refusal of the wife to comply with the decree, the Family Court had to go to the extent of directing the Commissioner of Police to cause production of the minor child. This order was challenged before the High Court, in which this Court initially granted a stay and later directed the Family Court to pass a speaking order considering the objection of the petitioner and after interacting with the child in the absence of both parents. The specific** OP (FC).No.539 OF 2020 5 **contention taken up before the High Court was also the allegation of sexual harassment.** **4. The Family Court, in compliance of the directions issued by this Court, carried out an enquiry. The minor child was summoned to the Court and interaction was carried out in the absence of the parents. The learned Family Court Judge records that the child answered every question in a prudent manner and responded properly to the queries regarding his School atmosphere and friends. It is recorded that even without any prompting on that aspect, the child volunteered to speak about the sexual harassment allegedly perpetrated on him. He narrated the incident as reported before the Police, which the Family Court Judge perceived to be by reason of tutoring. The** OP (FC).No.539 OF 2020 6 **Family Court records that the minor child's anxiety to come out with the incident itself shows that the allegation of tutoring raised by the respondent-father should be believed. At that stage, the FIR was registered and hence the execution application was closed.** **5. In the present instance, the Family Court noticed that final report has been filed by the Investigating Officer referring the crime. It is also seen that the Family Court from the final report finds the Investigating Officer having questioned 29 persons to come to the conclusion that the offence alleged is a false and fabricated one. The Investigating Officer is also found to have narrated an incident in which the petitionerwife's men had assaulted the decreeholder-** OP (FC).No.539 OF 2020 7 ## **respondent in the year 2018.** **6. The learned Judge relied on** _**Suhara and Others v. Mohammed Jaleel 2019 (2) KHC 596**_ **to find that even when there is registration of a crime, it shall not be reckoned as a ground to reject the claim of custody by the parent, unless there are sufficient materials to hold that the allegation of sexual abuse is well-founded. We deem it apposite to extract the following paragraph of the cited decision:** **“** _**28. In our opinion, mere registration of a crime under the provisions of the POCSO Act against the parent of the ward is no assurance to a Family Court that allegation of sexual abuse made against him is nothing but true. The allegation made against the biological father could be true in rare cases, but could be wholly false also. The Family Court, before which such registration**_ OP (FC).No.539 OF 2020 8 _**of crime is proved must necessarily apply its mind and endeavour to find out the true circumstances which activised the registration rather than being allured by the mere fact of registration. Unless a very cautious approach is adopted by the Family Court to ensure that information on which crime was registered is not frivolous and vexatious, many a innocent parent fighting for custody of his own ward would be victim of false implication of crimes under the POCSO Act. There is a growing tendency in the recent years to foist false crimes against the biological father alleging sexual abuse of own child misusing the provisions of the**_ _**POCSO Act when serious fight for custody of ward is pending resolution before the Family Courts. The Family Courts to whose notice registration of crime under the POCSO Act is**_ _**brought owe an onerous responsibility to ensure that the registration of crime against the parent is not a ruse for defeating his legitimate claim for custody of the ward. The Family Courts ought to examine the outcome of**_ OP (FC).No.539 OF 2020 9 _**investigation of the crime placed before the court and also take into consideration all relevant facts and circumstances which would help the Judge form a prima facie opinion as to whether the allegation of sexual abuse of the ward is baseless or not. Each case requires to be approached and evaluated on its own facts and we realise that no hard and fast approach could be laid in this respect at all. We do not mean to say that Family Courts should disregard the materials collected by the investigating agency in the crime and hold a total independent enquiry in order to get at the truth or veracity of the allegation. We make it clear that unless there are reliable materials capable enough to convince the allegation of sexual abuse to be well founded, mere registration of crime shall not be reckoned as a ground for rejecting the claim of the parent for custody of the child.”**_ **7. We are convinced that the Family Court has discharged its onerous responsibility in a** OP (FC).No.539 OF 2020 10 **commendable manner in the above case. The learned Counsel for the petitioner submitted that in fact the petitioner has filed a protest complaint, which is pending before the jurisdictional Court. However, that alone does not persuade us to find that the allegation of sexual abuse is well founded especially when the investigating agency has referred the case as a false one.** **8. We notice that the petitioner has already frustrated the order of interim custody of the child during the Christmas vacations. The order impugned was passed on 17.12.2020 and we see from the endorsement that a carbon copy was issued on 18.12.2020. The OP has been filed before this Court on 24.12.2020, when the vacation of this Court commenced.** OP (FC).No.539 OF 2020 11 **We find absolutely no reason to interfere with the very detailed consideration made by the Family Court. We reject the OP** _**in limine.**_ **Sd/-** **K. VINOD CHANDRAN, Judge.** **Sd/-** **M.R. ANITHA, Judge.** **sp/06/01/2021** **//True Copy//** **P.A. To Judge** OP (FC).No.539 OF 2020 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT,THRISSUR DATED 29/7/2017 IN O.P.1750/2014** **EXHIBIT P2 A TRUE COPY OF THE FIR IN CRIME NO.265/2019 OF CHEVAYUR POLICE STATION. EXHIBIT P3 TRUE COPY OF THE COMMON ORDER PASSED BY THE FAMILY COURT,THRISSUR IN E.A.NO.357/2019 AND EA 130/2020 IN EP 3/2019 IN OP 1750/2014 DATED 17/12/2020.**