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Judgments of Supreme Court of India and High Courts

Fathimabi M vs Muhammed Ashraff on 12 December, 2019

OP (FC)Nos.176/2019 649/2019

1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE K.HARILAL

THE HONOURABLE MR.JUSTICE C.S.DIAS

THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST
AGRAHAYANA, 1941

OP (FC).No.176 OF 2019

AGAINST THE ORDER IN I.A NO.60/2019 IN O.P. 1141/2017
OF FAMILY COURT,KOZHIKODE

PETITIONER/S:

FATHIMABI M.,
AGED 36 YEARS
D/O.KOYAMU, MANGATTIL HOUSE, NOW RESIDING AT
MURINGAPURAI P.O., KOZHIKODE TALUK,
KOZHIKODE DT. PIN-673602.

BY ADV. SMT.K.V.BHADRA KUMARI

RESPONDENT/RESPONDENT:

MUHAMMED ASHRAFF,
AGED 46 YEARS
S/O.KUNJALAN, CHEERANGAL HOUSE, VILLUR,
INDIANUR P.O., KOTTAKKAL, TIRUR TALUK,
MALAPPURAM DISTRICT, PIN-676503.

R1 BY ADV. SRI.P.SAMSUDIN
R1 BY ADV. SRI.JITHIN LUKOSE

THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD
ON 27-11-2019, ALONG WITH OP (FC).649/2019, THE COURT
ON 12-12-2019 DELIVERED THE FOLLOWING:
OP (FC)Nos.176/2019 649/2019

2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE K.HARILAL

THE HONOURABLE MR.JUSTICE C.S.DIAS

THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST
AGRAHAYANA, 1941

OP (FC).No.649 OF 2019

AGAINST THE ORDER IN I.A. NO.1068/2019 I.A.
NO.1148/2019 IN O.P. 1141/2017 DATED 11-10-2019 OF FAMILY
COURT,KOZHIKODE

PETITIONER/PETITIONER:

FATHIMABI,
AGED 40 YEARS
D/O.KOYAMU, MANGATTIL HOUSE, TIRUR TALUK,
EDARIKKODU VILLAGE, MALAPPURAM DISTRICT,
P.O.CHERUSSALA, PIN – 676 510.

BY ADV. SMT.K.V.BHADRA KUMARI

RESPONDENT/RESPONDENT:

MUHAMMAD ASHRAF,
S/O.KUNHALAN, AGED 45 YEARS, CHEERANGAL
HOUSE, VILLOOR, KOTTAKKAL, INDIANOOR P.O.,
MALAPPURAM DISTRICT, PIN – 676 503.

R1 BY ADV. SRI.P.SAMSUDIN
R1 BY ADV. SRI.M.ANUROOP
R1 BY ADV. SMT.S.K.SREELAKSHMY

THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
27-11-2019, ALONG WITH OP (FC).176/2019, THE COURT ON 12-
12-2019 DELIVERED THE FOLLOWING:
OP (FC)Nos.176/2019 649/2019

3

“C.R.”

JUDGMENT

Dias,J.

The above original petitions are

filed under SectionArticle 227 of the

Constitution of India,challenging Ext.P15

order passed in I.A 60/2019 and Ext.P13

order passed in I.A No.1068/2019 in

O.P.1141/2017 of the Family Court,

Kozhikode.

2. The petitioner is the respondent

in O.P. No.1141/2017. The original

petition is filed by the respondent

seeking permanent custody of their

youngest son “Azadul Hind Fateh Ali

Tippu”.

3.It is the case of the petitioner in

both the original petitions, that she is
OP (FC)Nos.176/2019 649/2019

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the divorced wife of the respondent. They

have three children in their wedlock.

The respondent used to brutally harass

and torture her. On 22.9.2014, the

respondent drew her out of the

matrimonial home. At that time she could

only take the youngest child with her, as

the older children were at school. Since

the respondent denied custody of the

older children to her, she filed O.P.

No.716/2014 before the Family Court,

seeking the permanent custody of the

older children. By the order of this

Court, the case was transferred from the

Family Court Tirur to the Family Court,

Malappuram.

4. The petitioner has also averred

that the respondent filed O.P.

No.83/2017 before the Family Court,
OP (FC)Nos.176/2019 649/2019

5

Tirur, seeking permanent custody of their

youngest child. The Family Court by

Ext.P3 order in I.A No.184/2017 directed

the petitioner to provide visitation

rights of the youngest child to the

respondent from 10.00 a.m on every

Saturday to 10 a.m on the ensuing Sunday.

The petitioner challenged the order

before this Court in O.P (FC)

No.310/2017. This Court by Ext.P4

judgment dismissed the original petition,

holding that there was no scope for

interference in the order.

5. The petitioner has further

averred that she, thereafter, filed I.A

No.970/2017, seeking to modify Ext.P3

order on the assertion that she had

secured a temporary employment in

Karassery near Mukkom. However, the
OP (FC)Nos.176/2019 649/2019

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Family Court dismissed the application,

which was again challenged before this

Court in O.P (FC) No 452/2017. This Court

by Ext.P7 judgment dismissed the original

petition directing the petitioner to

comply with Ext.P3 order till the

disposal of the case.

6. The petitioner has also pleaded

that she again filed I.A No.1450/2017

(Ext.P8) seeking to restrict the

visitation rights of the respondent to

twice a month during day time. The

Family Court by Ext.P9 order dismissed

the application in view of the findings

in Ext.P7 order of this Court. The

petitioner challenged Ext.P9 order

before this Court in O.P(FC) No.602/2017.

This Court by its interim order directed

the petitioner to hand over the youngest
OP (FC)Nos.176/2019 649/2019

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child to the respondent on every Friday

from 10.30 a.m to 4 p.m before the Family

Court, Malappuram and further directed

the respondent to hand over the older

two children to the petitioner.

7. The petitioner has also averred

that she used to hand over the custody of

the youngest child to the respondent on

every Friday, but unfortunately on

8.12.2017 the respondent abused her in

vituperative language and tortured her.

He, thereafter, on 26.1.2018, assaulted

her and she was hospitalised. Police

has registered a case against the

respondent. The petitioner filed I.A

2/2018 seeking to modify Ext.P3 interim

order.

8. The petitioner has further

pleaded that, when the case came up for
OP (FC)Nos.176/2019 649/2019

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hearing, this Court by Ext.P14 judgment

set aside the order in I.A No.1450/2017

in O.P. No.83/2017. During this

intervening period, this Court by its

judgment in Tr.P.C Nos.508, 509 and 610

of 2017 transferred O.P.83/2017 and

connected cases to the Family Court,

Kozhikode. O.P.83/2012 was renumbered as

O.P.1141/2017. The Family Court was

directed to expeditiously dispose of

O.P.83/2017. It was made clear that

Ext.P3 was not modified.

9. The petitioner also pleaded that

the Family Court without considering the

assertions in the affidavit, by Ext.P15

order dismissed the petitioner’s

application seeking modification. It is

challenging Ext.P15 order that O.P (FC)

No.176/2019 is filed.

OP (FC)Nos.176/2019 649/2019

9

10. O.P(FC) 649/2019 is filed by the

petitioner challenging Ext.P13 order,

passed subsequent to Ext.P15.

11. The respondent had filed I.A

No.1148/2019 on the assertion that the

petitioner has taken the youngest child

to Mumbai, where she is undergoing a

course, and she wants to pursue another

course.

12. The petitioner filed I.A

No.1068/2019, seeking permission to take

the child with her to Mumbai, where she

is presently studying.

13. The Family Court consolidated

the hearing of both applications and by

Ext.P13 order allowed I.A No.1148/2019

filed by the respondent and dismissed I.A

No.1068/2019 filed by the petitioner.

The petitioner was directed to hand over
OP (FC)Nos.176/2019 649/2019

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the custody of the youngest child to the

respondent on 26.10.2019, for a period of

six months or till such time the

petitioner continues to stay in Mumbai.

The petitioner was permitted to file an

application for restoring the custody of

the child to her, in the event she

returned to Kerala before the expiry of

six months.

14. It is assailing Ext.P15 order in

I.A No.60/2019 and Ext.P13 order in I.A

Nos.1068/2019 and 1148/2019 that the

above O.P (FC) Nos.176 and 649 of 2019

are filed.

15. We have heard Adv.K.V Bhadra

Kumari, the learned counsel for the

petitioner and Adv. Muhammed Ashraf, the

learned counsel for the respondent.

16. The dispute in both the original
OP (FC)Nos.176/2019 649/2019

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petitions pertains to the custody of the

youngest child of the parties.

17. The point that arises for

consideration in these original

petitions, is whether Exts.P15 and P13

orders passed by the Family Court are

legal and just?

18. It is an admitted fact that the

Family Court by Ext.P3, after considering

the pleadings and materials on record,

directed the petitioner to hand over

interim custody of her youngest child to

the respondent from 10.00 a.m on every

Saturday to 10 a.m on the ensuing

Sunday. This Court by Ext.P4 judgment

upheld Ext.P3 finding that there was

no scope for interference.

19. The petitioner did not comply

with Ext.P3 order, compelling the Family
OP (FC)Nos.176/2019 649/2019

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Court to issue a warrant of arrest

against the petitioner to cause

production of the child and be handed

over to the respondent.

20. The petitioner again challenged

that order. This Court was by Ext.P7

judgment upheld the order, but reserved

the right of the petitioner to move the

Family Court, if there was any change of

circumstances.

21. On the strength of the

observation, the petitioner filed I.A

No.1450/2017 seeking modification of

Ext.P3 order. The Family Court by order

dated 5.10.2017 found that there was no

scope for modifying the order in view

of the Ext.P7 judgment. The petitioner

challenged that Ext.P9 before this

Court in O.P (FC) No.602/2017.
OP (FC)Nos.176/2019 649/2019

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22. This Court by Ext.P14 judgment

held that the Family Court had passed

Ext.P9 order without considering the

rival contentions. Accordingly, Ext.P9

order was quashed and the Family Court

was directed to consider the matter

afresh, after affording both sides an

opportunity of being heard. However,

this Court categorically ordered that

there is no modification in respect to

Ext.P3 order confirmed by this Court in

Ext.P4.

23. As directed by this Court in

Ext.P14 judgment, the Family Court by

Ext.P15 order found that there are no

circumstances warranting to change the

venue for handing over and returning the

child and that there was no reason to

modify the order granting over-night
OP (FC)Nos.176/2019 649/2019

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custody of the child to the respondent

and to limit the respondent’s right to

have custody of the child to two

Saturdays in a month, instead of all

Saturdays.

24. From the above facts and

sequence of events, the fact remains that

the petitioner has been tenaciously

attempting to circumvent Ext.P3 order and

thwart the respondent from enjoying the

custody of the child during all week

ends. It is also to be noted that the

Family Court had earlier ordered the

permanent custody of the older two

children with the respondent, reserving

the visitation rights of the petitioner.

The order in O.P. No.716/2014 is in force

and has not been modified.

25. The Family Court, while
OP (FC)Nos.176/2019 649/2019

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passing Ext.P3 order, directed the

youngest child to be granted to the

respondent because the older two children

are with him, and it would secure the

paramount welfare and best interest of

the children, if the siblings are

permitted to be in the company of each

other, so that they can have a bonding.

26. The Hon’ble Supreme Court in

SectionAnjai Kapoor v.Baijal [(2009) 7 SCC 322]

has held that in a battle for the custody

of a child, the courts should see what

would best serve the welfare and

interest of the child, which is the sole

and predominant criterion and not the

legal rights of the warring parents.

27. The petitioner instead of

complying with the repeated directions of

the Family Court and this Court, left
OP (FC)Nos.176/2019 649/2019

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with the child to Mumbai, without seeking

prior permission from court, purportedly

to pursue a course in hijama medicine in

defiance to Exts.P3, P4, P4, P14 and P15

orders/judgments. The petitioner’s action

was in contravention to Section 26 of

the Guardian and SectionWards Act, 1890.

28. Section 26 of the Guardian and

SectionWards Act, reads as follows:

“Removal of ward from jurisdiction:

(1) A guardian of the person
appointed or declared by the

court, unless he is the Collector
or is a guardian appointed by will
or other instrument, shall not,
without the leave of the court by
which he was appointed or
declared,remove the ward from the
limits of its jurisdiction except
for such purposes as may be
prescribed.”

OP (FC)Nos.176/2019 649/2019

17

29. In view of Section 26 of the Act

and the fact that Exts P3, P4, P14 and

P15 orders/judgments are in force, it was

mandatory for the petitioner to have

moved the court and sought prior

permission before removing the child from

the territorial jurisdiction of the

Family Court.

30. The Hon’ble Supreme Court in

SectionRoxann Sharma v. Arun Sharma [(2015) 8

SCC 318] has deprecated the father in

that case for leaving the jurisdiction

of the court with the child, without

notifying or taking permission. It was

held that the act was violative of 26 of

the Act, and prima facie, undermined the

authority of court and may tantamount to

contempt of court under the SectionContempt of

Courts Act, 1971. The Supreme Court
OP (FC)Nos.176/2019 649/2019

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also held that Section 26 casts an

omnibus embargo on a guardian from

removing the ward from the limits of the

jurisdiction of the court. It was further

observed that often it becomes necessary

that parents having custody of the child

finds a more suitable employment

somewherelese, but the entitlement of the

left behind spouse has to be jurally

investigated.

31. We abjure ourselves from dwelling

to the merit of the case or making any

further observation in these cases, as we

are conscious that the trial is pending

before the Family Court.

32. Notwithstanding Ext.P14 judgment

passed by this Court as early as on

18.12.2018 to expeditiously dispose of

the case, the case has not progressed.
OP (FC)Nos.176/2019 649/2019

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33. After removing the child to

Mumbai, the petitioner filed I.A

No.1068/2019 seeking permission of the

Family Court seeking ratification of her

misconduct. The respondent then filed

I.A No.1148/2019, seeking a direction

that the child be handed over to him

while the petitioner pursues her studies

in Mumbai.

34. The Family Court rightly by

Ext.P13 order ordered the child to be

handed over to the respondent, while the

petitioner pursues her studies in Mumbai

and directed the petitioner to move

appropriate application, as soon as she

completes her course and returns to

Kerala. The direction cannot be found

fault with because if the child lives in

Mumbai, a place alien to the child, he
OP (FC)Nos.176/2019 649/2019

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will have to adopt to a new culture,

language, surroundings and above all

denied the company and companionship of

his siblings.

35. As we have already found, the

objective behind Ext.P3 order directing

the petitioner to hand over the custody

of the youngest child to the respondent

on all Saturdays was to enable the child

to mix and mingle and spend valuable

time with his older siblings. We do not

find any impropriety, illegality or

irregularity in the arrangement. The

converse would jeopardise the paramount

welfare of the youngest child. The

petitioner instead of accepting the

arrangement, has been stubbornly

resisting the same and repeatedly filing

applications, to protect her vested
OP (FC)Nos.176/2019 649/2019

21

interest and forgetting about the

welfare of the child.

36. In the light of our findings and

Exts.P3, P4, P14 and P15 orders/judgments

and the law declared by the Hon’ble

Supreme Court, we do not find any error

or illegality in Ext.P15 order in O.P

(FC)176/2019 and Ext.P13 order in O.P

(FC) 649/2019, warranting interference by

this Court invoking its supervisory

jurisdiction as enshrined under SectionArticle

227 of the Constitution of India.

Accordingly, we confirm Ext.P15 and P13

orders. The Family Court shall make

every endeavour to enforce Ext.P3 order

in its letter and spirit.

37. In the result, the following

orders are passed:-

OP (FC)Nos.176/2019 649/2019

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(i) O.P.(FC) 176 and 649/2019 are

dismissed.

(ii) Ext.P15 order in O.P (FC)

176/2019 and Ext.P13 order in

O.P.649/2019 are confirmed.

(iii) The Family Court, Kozhikode is

directed to dispose of O.P. No.83/2017

within a period of four months from the

date of receipt of a copy of this

judgment.

(iv) Registry shall forward a copy

of this judgment to the Family Court,

Kozhikode.

(v) The parties are directed to

bear their respective costs.

Sd/-K.HARILAL, JUDGE

ma/11/12/2019 Sd/-C.S.DIAS, JUDGE
/True copy/
P.S to Judge
OP (FC)Nos.176/2019 649/2019

23

APPENDIX OF OP (FC) 176/2019
PETITIONER’S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE OBJECTION FILED
BY THE RESPONDENT IN
O.P.NO.716/2014.

EXHIBIT P2 A TRUE COPY OF THE F.I.R.

NO.246/2015 OF KOTTAKKAL POLICE
STATION REGISTERED AGAINST THE
PETITIONER’S FATHER.

EXHIBIT P3 A TRUE COPY OF THE ORDER PASSED BY
THE FAMILY COURT, TIRUR IN
I.A.NO.184/2017 IN O.P.NO.83/2017.

EXHIBIT P4 A TRUE COPY OF THE ORDER IN O.P.

(F.C) NO.310/2017 DATED 2.6.2017
PASSED BY THIS HON’BLE COURT.

EXHIBIT P5 A TRUE COPY OF THE PETITION FILED BY
THE PETITIONER AS I.A.NO.970/2017
BEFORE THE FAMILY COURT, TIRUR.

EXHIBIT P6 A TRUE COPY OF THE I.A.NO.977/2017
IN O.P.NO.83/2017 FILED BY THE
PETITIONER.

EXHIBIT P7 A TRUE COPY OF THE JUDGMENT IN O.P.

(F.C.)NO.452/2017 OF THIS HON’BLE
COURT ON 30.8.2017.

EXHIBIT P8 A TRUE COPY OF THE MODIFICATION
PETITION FILED BY THE PETITIONER,
I.A.NO.1450/2017.

EXHIBIT P9 A TRUE COPY OF ORDER PASSED BY THE
FAMILY COURT, TIRUR IN
I.A.NO.1450/2017 IN I.A.NO.184/2017
IN O.P.NO.83/2017 DATED 5.10.2017.

EXHIBIT P10 A TRUE COPY OF THE WOUND CERTIFICATE
ISSUED BY THE GOVT. TALUK HOSPITAL,
MALAPPURAM DATED 8.12.2017.

EXHIBIT P11 A TRUE COPY OF THE WOUND CERTIFICATE
ISSUED BY THE GOVT. TALUK HOSPITAL,
MALAPPURAM DATED 26.1.2018.
OP (FC)Nos.176/2019 649/2019

24

EXHIBIT P12 A TRUE COPY OF THE F.I.R.NO.31/2018
OF MALAPPURAM POLICE STATION DATED
27.1.2018.

EXHIBIT P13 A TRUE COPY OF THE F.I.R.NO.287/2018
OF MALAPPURAM POLICE STATION ALONG
WITH FIRST INFORMATION STATEMENT.

EXHIBIT P14 A TRUE COPY OF THE JUDGMENT PASSED
IN O.P.(F.C.)NO.602/2017 DATED
18.12.2018.

EXHIBIT P15 CERTIFIED COPY OF THE ORDER IN
I.A.NO.60/2019 IN O.P.NO.1141/2017.
OP (FC)Nos.176/2019 649/2019

25

APPENDIX OF OP (FC) 649/2019
PETITIONER’S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN O.P.

(F.C.) NO.452/2017 PASSED BY THIS
HON’BLE COURT ON 30/8/2017.

EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE
FAMILY COURT, TIRUR IN
I.A.NO.1450/2017 IN I.A.NO.184/2017
IN O.P.NO.83/2017 DATED 5/10/2017.

EXHIBIT P3 TRUE COPY OF THE WOUND CERTIFICATE
ISSUED BY THE GOVT. TALUK HOSPITAL,
MALAPPURAM DATED 8/12/2017.

EXHIBIT P4 TRUE COPY OF THE WOUND CERTIFICATE
ISSUED BY THE GOVT. TALUK HOSPITAL,
MALAPPURAM DATED 26/1/2018.

EXHIBIT P5 TRUE COPY OF THE F.I.R.NO.31/2018 OF
MALAPPURAM POLICE STATION DATED
27/1/2018.

EXHIBIT P6 TRUE COPY OF THE F.I.R.NO.287/2018
OF MALAPPURAM POLICE STATION ALONG
WITH FIRST INFORMATION STATEMENT.

EXHIBIT P7 TRUE COPY OF THE JUDGMENT PASSED IN
O.P.(F.C.) NO.602/2017 DATED
18/12/2018.

EXHIBIT P8 TRUE COPY OF THE ORDER IN
I.A.NO.60/2019 IN O.P.NO.1141/2017.

EXHIBIT P9 TRUE COPY OF THE PETITION IN
I.A.NO.1068/2019 FILED BY THE
PETITIONER.

EXHIBIT P10 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE RESPONDENT IN
I.A.NO.1068/2019.

EXHIBIT P11 TRUE COPY OF THE PETITION
I.A.NO.1148/2019.

EXHIBIT P12 TRUE COPY OF THE COUNTER FILED BY
THE PETITIONER IN I.A.NO.1148/2019.
OP (FC)Nos.176/2019 649/2019

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EXHIBIT P13 CERTIFIED COPY OF THE COMMON ORDER
IN I.A.NO.1068/2019 AND
I.A.NO.1148/2019 IN O.P.NO.1141/2017
DATED 11/10/2019.

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