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Dr.Varun.S.Nair (Sidha) vs Remya S.Nair on 13 December, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

THURSDAY ,THE 13TH DAY OF DECEMBER 2018 / 22ND AGRAHAYANA, 1940

Mat.Appeal.No. 1217 of 2017

O.P.NO.1834/2014 of FAMILY COURT,THIRUVANANTHAPURAM

DATED 14-09-2017

APPELLANT/COUNTER PETITIONER:

DR.VARUN.S.NAIR (SIDHA),
AGED 40, S/O. SUKUMARAN NAIR,
VINDHYA VIHAR,THACHOTTUKAVU, MALAYINKEEZHU AND
CONDUCTING MAHALAKSHMI AYURVEDA,
SIDHA MARMA CHIKILSALAM AT VINDHYA VIHAR,
THACHOTTUKAVU, MALAYINKEEZH P.O., THIRUVANANTHAPURAM.

BY ADV. SMT.MAJIDA.S

RESPONDENT/PETITIONER:
REMYA S.NAIR,
AGED 29, D/O. ALLY KUMARI,
NOW RESIDING AT KUNNIL VEEDU,
THEKKUMKARA, NEDUMANGADU P.O.,
THIRUVANANTHAPURAM – 695 541.

BY ADV. SRI.WILSON URMESE

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Bb
Mat.Appeal.No. 1217 of 2017 : 2 :

JUDGMENT

C.K.ABDUL REHIM, J.

The above appeal is instituted against the judgment in

O.P.No.1834/2014 of the Family Court, Thiruvananthapuram. The

appellant herein is the respondent in the original petition filed by the

respondent herein before the Family Court, seeking permanent custody

of the minor child born to the parties, named Siva Nandha, aged 5 years

at the time of filing of the original petition. In the original petition filed

before the Family Court, the respondent herein narrated about the

consistent physical assault and torture to her from the side of the

appellant. It is specifically mentioned that, on 14.11.2014, the appellant

inflicted physical assault on the respondent in a brutal manner.

Thereafter on 16.11.2014, the appellant called the brother of the

respondent and requested him to take the respondent to a hospital.

Accordingly the respondent was taken by her relatives from the house of

the appellant and got her admitted in a hospital. Thereafter the spouses

lived separately. The child was in the custody of the appellant. The

respondent expressed an apprehension that the appellant will do harm

to the minor child. Further it was contended that the respondent, being
Mat.Appeal.No. 1217 of 2017 : 3 :

the mother of the child, is entitled to have custody of the minor child

since she is ready and willing to look after the girl child.

2. The appellant resisted the original petition before the Family

Court mainly contending that, he had realised that the respondent is

having some illicit connection with a person named ‘Ananda Krishnan’,

who was working in a Co-operative Society where the respondent had

studied for computer course. According to the appellant, the respondent

told him that she cannot live with the appellant any more as she loves

the above said ‘Ananda Krishnan’ very much. It is further contended

that the respondent was taken to the hospital and she conceded before

the Doctor that she took excess quantity of tablets when the appellant

failed to give her an amount of Rs.30,000/- for purchasing a video light

for her brother. It is further alleged that the respondent is having a

tendency to commit suicide. It was alleged that the respondent is

claiming custody of the child only with an intention to extract money from

the appellant. The appellant contended that he is capable of taking care

of the child and is capable of providing a peaceful atmosphere to the

child in his house. Further contention raised is that, the respondent is

not having financial capacity to provide the needs of the child. The

appellant also contended that he being the father is the natural guardian
Mat.Appeal.No. 1217 of 2017 : 4 :

who is entitled to get custody of the minor child.

3. Evidence adduced before the court below consisted of oral

testimony of PW1 and PW2 on the side of the respondent and CPW1

and CPW2 on the side of the appellant. Exts.A1 to A2 are the

documents marked on behalf of the respondent and Exts.B1 to B9 are

documents marked on behalf of the appellant.

4. After evaluating the evidence on record, the Family Court

found that the minor is a girl child, who needs proper guidance and

control of the mother, for the proper upbringing of the child. Therefore

the court below took the view that the respondent herein is the fit person

tobe entrusted with custody of the minor child and that she can be

appointed as local guardian of the minor. At the same time, the Family

Court had passed appropriate orders to secure the rights of visitation of

the appellant to the child. Therefore it was ordered to give custody of

the minor child to the respondent. The appellant was permitted to have

custody of the child on every weekends from 4.00 p.m. on the Fridays till

4.00 p.m. on the successive Sundays. The child was directed to be

handed over from a place where the parties may agree or from the

premises of the Family Court.

5. The appellant is assailing the judgment of the Family Court
Mat.Appeal.No. 1217 of 2017 : 5 :

mainly contending that the declaration made by the Family Court

appointing the respondent as guardian is against provisions contained in

Section 19(b) of the Guardians and Wards Act, 1890. But on a perusal

of the said provision it is evident that the said provision prohibits the

court from declaring anybody as guardian of the person of the minor

unless in a case where the father or mother who is living is found to be

unfit to be declared as guardian of the person of the minor. In the case

at hand, both the parents of the minor are living and the court below had

not arrived at any finding that the respondent/mother is a person unfit to

be declared as guardian of the minor child. Therefore, based on the

findings rendered by the Family Court that the respondent herein is the

fit person to be entrusted with custody of the minor child, taking into

consideration of the welfare of the child, there is nothing wrong in the

findings of the court below with respect to the declaration of

guardianship of the person of the minor. Hence we do not find any

illegality with respect to the declaration made by the court in appointing

the respondent as guardian of the minor child.

6. Next contention raised by the learned counsel for the

appellant is that, the respondent herein is not having adequate financial

capacity to take care of the needs of the child, whereas the appellant is
Mat.Appeal.No. 1217 of 2017 : 6 :

having adequate financial ability and circumstances to maintain the child

in a better manner. As observed by the Family Court, the financial

capacity of the respondent is not the paramount consideration for

granting custody of the child. But on the other hand, the finding is to the

effect that the child is in need of guidance and control of the mother for

her upbringing. We do not find any irregularity or impropriety on the

finding of the court below in arriving at such a conclusion. It is pertinent

to note that despite the allegations of unchastity made by the appellant

against the respondent through the written statement filed, the appellant

had admitted that he did not know the person named ‘Ananda Krishnan’

and he had never seen him. He further admitted that he did not know

where the said ‘Ananda Krishnan’ is working. On an evaluation of the

evidence of the appellant adduced as CPW1, the court below had found

that the allegations levelled against the respondent was totally

unfounded and meritless and in making such allegation the appellant

had shown cruelty to the respondent and the attitude of the appellant is

something which is telling upon with respect to the custody of the minor.

7. A further contention raised is that the court below had made

an observation that there occurred negligence on the part of the

appellant to take proper care of the child when the child sustained an
Mat.Appeal.No. 1217 of 2017 : 7 :

injury while she was in the custody of the appellant. Learned counsel

for the appellant contended that such a finding was made without any

support of pleadings or evidence. We are of the considered opinion

that, we need not delve upon the above said aspect because the court

below, despite making such an observation, had allowed visitation rights

to the appellant and to have interim custody of the child on every

weekend. It is pertinent to note that the respondent has not so far

challenged the said arrangement made by the Family Court.

8. Lastly, learned counsel for the appellant raised a plea that a

direction may be issued to the respondent to admit the child in a better

school near to the residence of the respondent herself, at the expenses

of the appellant. We may at the outset observe that, the issue on this

aspect is not a matter which can be agitated in this appeal. When the

Family Court has granted permanent custody of the minor child to the

respondent, it is for the respondent to decide about the facilities to be

provided to the minor child for her proper education. If there is any

failure on the part of the respondent in this regard, it may probably can

be considered as a change of circumstance, which may entitle the

appellant to move the Family Court for a modification of the impugned

judgment or for seeking necessary directions in that respect. It is not
Mat.Appeal.No. 1217 of 2017 : 8 :

proper or justified on the part of the appellate court to issue any

directions in that respect.

9. From the discussions made as above, we do not think that

there is any substantial ground exists warranting interference on the

impugned judgment of the Family Court. However, it is noticed that,

during the pendency of the above appeal, by virtue of an interim order

passed by this court on 4.12.2017 the appellant was permitted to have

interim custody of the minor child for the first 5 days during Onam and

Christmas holidays and for the first 15 days during the Summer

holidays, over and above the weekly interim custody provided by the

Family Court. Learned counsel for the appellant made an appeal to this

court to modify the interim visitation right granted by the Family Court,

atleast to that extent. We are of the considered opinion that a

modification of the right of interim custody provided in the impugned

judgment of the Family Court, to the extent as mentioned above, can be

granted.

10. Accordingly, the above appeal is hereby disposed of by

modifying the impugned judgment of the Family Court,

Thiruvananthapuram in O.P.No.1834/2014 to the extent of altering the

conditions of interim custody provided to the appellant as follows:
Mat.Appeal.No. 1217 of 2017 : 9 :

The appellant will be entitled to have interim custody of the child on

every weekends from 4.00 p.m. on Fridays till 4.00 p.m. on the

succeeding Sundays. The appellant will also be entitled to have custody

of the minor child for the first 5 days during Onam and Christmas

holidays and for the first 15 days during the mid-summer vacation. If no

Saturdays and Sundays are falling in between the period of interim

custody during the vacations, the interim custody of the child during the

immediately succeeding weekends need not be given. The child shall

be handed over custody and taken back custody from the premises of

the Family Court, Thiruvananthapuram. The child shall be permitted to

attend the school on any Saturdays, if there is extra curricular activities,

while she is the custody of the appellant.

Sd/-

C.K.ABDUL REHIM
JUDGE
Sd/-

T.V.ANILKUMAR
JUDGE
Bb

[True copy]

P.A to Judge

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