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