High Court of KeralaDivision Bench2019-11-13Interim custody order modified/affirmed in part...

S. Syam Lal v. S. Lathika

Case / Petition Number:OP (FC).No.516 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Annie John
Judgment Date: 2019-11-13
Court Decision / Holding: The High Court held that the welfare of the child is paramount. It acknowledged that mere pendency of a criminal case cannot automatically deny custody to the father and endorsed the principle from Suhara v. Muhammed Jaleel, but found that the Family Court’s order granting custody for only seven days per month was not fully consistent with the child’s best interests in the circumstances. The Court thus maintained an interim custody framework whereby the father retains custody for seven days in each month, with the mother (respondent) retaining custody on the second and last Saturdays from 10:00 a.m. to the ensuing Sunday 4:00 p.m., with exchanges at the Family Court Kollam, and directed the Family Court to dispose of the original petition untrammelled by these observations. The order aims to balance safety, stability, and the child’s welfare until final determination of the custody petition.
Final Disposition: Interim custody order modified/affirmed in part; father granted seven days of custody per month with the child, and mother granted custody on specified weekends; original petition to be disposed by Family Court without being hindered by these observations.

Parties to the Case

Appellants / Petitioners

S. Syam Lal

Respondents

S. Lathika

Legal Representation & Advocates

Counsels for Petitioners

• Sri. B. Mohanlal

Case Synopsis & Summary

This is an original petition (OP) under the Protection of Children? Family Court (G&W) proceedings, Kerala, concerning custody of a minor born on 18 July 2007. The petitioner, Syam Lal, seeks permanent custody in OP (G&W) No.780/2018 and has filed IA 1712/2018 seeking interim custody. The proceedings arose after the petitioner’s wife committed suicide on 24 August 2018; the child remained with the petitioner initially, but the respondent (the wife’s mother) asserted control over the child, and a criminal case was registered against the brother and father of the deceased wife. The Family Court Kollam granted interim custody to the petitioner for seven days in a month and placed the child with the respondent for the remaining period, with exchanges at the Family Court. The respondent contends the child has mental abnormalities and fears the petitioner; she asserts cruelty by the petitioner, underpinning a criminal investigation under sections 498A and 304B IPC read with 34 IPC. The Kerala High Court, observing that the welfare of the child is paramount and noting that mere pendency of a criminal case does not automatically bar custody, relies on Suhara v. Muhammed Jaleel to support the principle. The court holds the petitioner to be a fit guardian given his income and family support, while maintaining a structured interim custody schedule and directing the Family Court to dispose of the original petition freely from the observed constraints."

Provisions of Law Cited

Section 498A IPCSection 304B IPC read with Section 34 IPC

Legal Doctrines & Maxims

Welfare of the child (best interests of the child) principle; pendency of criminal cases not per se a bar to custody rights (as discussed in the court’s reasoning)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that he is a fit guardian, employed as a loco pilot with a stable, well-paying job, and resides with his mother who can assist in care of the child. After the wife’s death, the child remained with him; the respondent’s kin allegedly took the child by force, triggering criminal proceedings against relatives of the deceased wife. The petitioner emphasizes the child’s best interests, stability, education prospects, and financial capacity to provide a secure environment, arguing that mere pendency of a criminal case should not automatically preclude custody. He cites Suhara v. Muhammed Jaleel to support the principle that criminal proceedings do not automatically bar custody, and urges the High Court to grant interim custody for a longer period or until disposal of the original petition, while ensuring regular access for the respondent under a transparent schedule.

Contentions of Respondents

The respondent argues that the child is suffering from mental distress and fears the petitioner, alleging mental abnormalities and cruelty by the petitioner, which purportedly led to her daughter’s suicide. She highlights the ongoing criminal investigation (Cr. No. 705/2018 and related cases under 498A and 304B IPC) and contends that the child’s safety and mental well-being require protecting the child from perceived harm. She asserts that the welfare of the child warrants maintaining the status quo and careful evaluation before altering custody, especially in a situation where the father has custody during part of the month but the child remains vulnerable to alleged cruelty and coercion. The respondent seeks continued arrangements favorable to the child’s emotional and psychological stability and argues against extended interim custody to the father.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Suhara v. Muhammed Jaleel	2019 (2) KLT 960	Positive	The High Court cites this Kerala Law Times decision to support the proposition that pendency of a criminal case is not, by itself, a ground to deny custody, and uses it to inform its reasoning on interim custody.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** **OP (FC).No.516 OF 2019** **AGAINST THE ORDER IN I.A.NO.1712/2018 IN O.P.(G&W) NO. 780/2018 DATED 08-07-2019 OF FAMILY COURT, KOLLAM** ## **PETITIONER :** **S.SYAM LAL, AGED 31 YEARS, S/O. P. SASIDHARAN, SANTHIBHAVANAM, MERA NAGAR - 181, MUNDAKKAL EAST, MUNDAKKAL VILLAGE, KOLLAM DISTRICT** **BY ADV. SRI.B.MOHANLAL** **RESPONDENT :** **S.LATHIKA, AGED 55 YEARS, W/O. K. LALU, LATHIKA MANDIRAM, MATHILIL P. O., THRIKKADAVOOR VILLAGE, KOLLAM - 691 601.** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03-10-2019, THE COURT ON 13-11-2019 DELIVERED THE FOLLOWING :** **OP (FC).No.516 OF 2019** 2 ## JUDGMENT ## K.Harilal, J. The appellant is the petitioner in IA.No.1712/2018 in OP (G&W) No.780/2018 of the Family Court, Kollam. The aforesaid application was filed seeking an order granting interim custody of the minor child till the disposal of the aforesaid OP. The aforesaid OP was filed by the petitioner herein seeking permanent custody of the child. According to the petitioner, his wife is no more and a child was born in the wedlock between the petitioner and the deceased wife. The date of birth of the child is 18.07.2007. After the delivery of the child, his wife committed suicide on 24.08.2018 and at the time of death of his wife, the child was with him. Subsequently, the respondent, the mother of the wife and his men took away the child by force and a criminal case is pending against the brother and father of the deceased wife. **OP (FC).No.516 OF 2019** 3 According to the petitioner, he is the fit person to protect the welfare of the child and the respondent herein is aged more than 55 years and having no income of her own to look after the child. 2. The respondent resisted the said claim contending that her daughter was having mental abnormalities as she was afraid that the petitioner will cause danger to her life. Her daughter committed suicide due to the mental and physical cruelty meted out to her by the petitioner herein. Consequently, criminal case has been registered against the petitioner on the complaint filed by her for the offence punishable under Section 498A and 304 B read with Section 34 IPC and the said case is under investigation. After considering the aforesaid rival contention, the Family Court passed an order granting interim custody to the petitioner for 7 days of each month and the child will be **OP (FC).No.516 OF 2019** **==> picture [7 x 7] intentionally omitted <==** in the custody of the respondent herein for the rest of the period of each month. Aggrieved by the said order, this OP - (FC) has been filed on various grounds. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 4. Going by the impugned order, we find that though the respondent has opposed the interim custody with the petitioner on the ground that a criminal case is pending against the petitioner herein, the court below rejected the said contention and found that mere pendency of a criminal case does not preclude the petitioner from claiming interim custody of the child and the welfare of the child alone need to be looked into for granting interim custody. So also, it is specifically observed that the reason for the death of the petitioner's wife is yet to be detected. That apart, the court below relied on the decision reported in Suhara v. **OP (FC).No.516 OF 2019** 5 Muhammed Jaleel [2019 (2) KLT Page - 960] wherein the court observed that mere pendency of the crime is not a ground to disallow the custody of the ward to the father. But, we further find that the Family Court after arriving at such a finding, turned around and granted interim custody for 7 days only to the petitioner. Can the court below be justified in granting interim custody to the father for 7 days only when the mother of the child is no more? 5. It is needless to say, the welfare of the child alone need be considered while determining the proper custody of the child. Admittedly, the petitioner is a loco pilot employed in Railway and getting a good salary. His mother is also alive in his house to look after the child. The child was with the petitioner herein till 2017 and Ext.P20 shows that while the child was in his custody, the brother and father of **OP (FC).No.516 OF 2019** 6 the deceased wife have taken away the child by force from the custody of the petitioner. On the other hand, the respondent is aged 55 years, who is having no income of her own. If the child is in the custody of the petitioner, the child will get love and affection of her father and the paternal grandmother. Since the father is having good salary, he is able enough to give good education to the child. When the mother is no more and the father is having sufficient financial capacity to look after the child with the assistance of his mother, father is the fit person to have the custody of the child till the disposal of the original petition. Hence the petitioner is given interim custody of the child till the disposal of the original petition. But the respondent is also given interim custody of the child on the 2nd and last Saturdays from 10.00 a.m. to the ensuing Sunday at 4.00 p.m. of each month. The venue of exchange of the child shall be the **OP (FC).No.516 OF 2019** 7 Family Court, Kollam. The Family Court is directed to dispose of the original petition, untrammelled by the observations made above. This OP (FC) is disposed of accordingly. Sd/K.HARILAL, JUDGE Sd/ANNIE JOHN, JUDGE RKM **OP (FC).No.516 OF 2019** 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE PLAINT IN O.P.(G AND W) NO.780/2018 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KOLLAM.** **EXHIBIT P2 THE TRUE COPY OF I.A.NO.1712/2018 IN O.P.(G AND W) NO.780/2018 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KOLLAM.** - **EXHIBIT P3 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT AGAINST EXT.P2 APPLICATION BEFORE THE FAMILY COURT, KOLLAM.** - **EXHIBIT P4 THE TRUE COPY OF THE ORDER IN I.A.NO.1712/2018 IN O.P.(G AND W) NO.780/2018 DATED 08.07.2019 ON THE FILE OF THE FAMILY COURT, KOLLAM.** **EXHIBIT P5 THE TRUE COPY OF THE JAPTHA SUBMITTED BY ME BEFORE THE FAMILY COURT, KOLLAM IN OP(G&W) NO 780/2018 DATED 10/2018 AND 06/2019** - **EXHIBIT P6 THE TRUE COPY OF THE NAMING CEREMONY OF THE PETITIONER'S DAUGHTER CONDUCTED AT THE RESIDENCE OF THE RESPONDENT** - **EXHIBIT P7 THE TRUE COPY OF THE NAME OF THE CHILD FIRST CALLED BY THE MOTHER OF THE RESPONDENT IN THE EAR OF THE PETITIONER'S CHILD** - **EXHIBIT P8 THE TRUE PHOTO OF THE NAME OF THE CHILD FIRST CALLED BY THE PETITIONER IN THEEAR OF THE PETITIONER'S CHILD** - **EXHIBIT P9 THE TRUE PHOTO OF THE PETITIONER AND THE MINOR CHILD TOOK BY THE PETITIONER AT THE RESIDENCE OF THE RESPONDENT** **EXHIBIT P10 THE TRUE PHOTO OF THE PETITIONER AND HIS WIFE RESIDED TOGETHER AT THE RESIDENCE OF THE RESPONDENT AFTER** **OP (FC).No.516 OF 2019** 9 ## **DELIVERY OF THE MINOR DAUGHTER** - **EXHIBIT P11 THE TRUE PHOTO OF THE PETITIONER'S WIFE AND SISTER ALONG WITH THE CHILD RESIDED TOGETHER AT THE RESIDENCE OF THE PETITIONER AFTER DELIVERY OF THE MINOR DAUGHTER** - **EXHIBIT P12 THE TRUE PHOTO OF THE RESPONDENT WITH THE MINOR CHILD AT THE RESIDENCE OF THE PETITIONER** - **EXHIBIT P13 THE TRUE PHOTO OF THE MINOR DAUGHTER WITH RESPONDENT AT THE TIME TAKING THE BATH OF THE MINOR CHILD AT THE RESIDENCE OF THE PETITIONER** - **EXHIBIT P14 THE TRUE PHOTO (3 NUMBERS) OF THE PETITIONER WITH THE MINOR CHILD BEFORE THE DEATH OF THE PETITIONER'S WIFE** - **EXHIBIT P15 THE TRUE PHOTO OF THE PETITIONER AND HIS WIFE ALONG WITH THE 5 MONTHS OLD CHILD IN THE METRO TRAIN AT ERNAKULAM** - **EXHIBIT P16 THE TRUE PHOTO OF THE PETITIOER AND HIS WIFE ALONG WITH 8 MONTHS OLD CHILD TOOK IN THE STUDIO** - **EXHIBIT P17 THE TRUE PHOTO OF THE PETITIONER AND HIS WIFE ALONG WITH THE MINOR CHILD (2NOS.) ATTENDING THE KOLLAM POORAM UTSAVAM JUST BEFORE ONE WEEK BEFORE THE DEATH OF THE PETITIONER'S WIFE** - **EXHIBIT P18 THE TRUE PHOTO OF THE MINOR CHILD WITH NEW DRESSES AND TOYS ON THE THIRUVONAM FESTIVEL(2NOS.), WHILE THE FAMILY COURT GRANTED INTERIM CUSTODY OF THE MINOR WARD TO THE PETITIONER** - **EXHIBIT P19 THE TRUE COPY OF THE FIR IN CRIME NO 705/2018 OF KOLLAM EAST POLICE STATION** - **EXHIBIT P20 THE TRUE COPY OF THE FIR IN CRIME NO 488/2018 OF ANCHALUMMOODU POLICE STATION REGISTERED AGAINST THE SON OF THE RESPONDENT AND OTHER IDENTIFIED PERSONS** **OP (FC).No.516 OF 2019** 10 |**EXHIBIT P21**|**THE TRUE COPY OF THE ORDER IN CRL.MC NO**| |---|---| ||**618/2018 OF HE SESSIONS JUDGE, KOLLAM**| ||**DATED 9.5.2018**| |**EXHIBIT P22**|**THE TRUE COPY OF THE SALARY CERTIFICATE**| ||**NO V/9395/IV.C&W/VOL.1 DATED 12.11.2018**| ||**OF THE PETITIONER ISSUED BY THE SENIOR**| ||**DIVIIONAL PERSONNEL OFFICER, SOUTHERN**| ||**RAILWAY THIRUVANANTHAPURAM**|