OP (FC)Nos.176/2019 649/2019
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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
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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
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“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
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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
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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
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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
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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.”
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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
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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.
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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
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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
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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:-
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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
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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
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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
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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.
