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Judgments of Supreme Court of India and High Courts

Suhara vs Muhammed Jaleel on 10 April, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE K.HARILAL

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941

Mat.Appeal.No. 182 of 2019

O.P.NO.608/2015 of FAMILY COURT, OTTAPPALAM, DATED 07-02-2019

APPELLANT/PETITIONER:

SUHARA,
AGED 43 YEARS,
W/O.ABDUL RASHEED, KILAYIL HOUSE, MUNNURKODE.P.O.,
OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679502.

BY ADVS.
SRI.JACOB SEBASTIAN
SRI.K.V.WINSTON

RESPONDENT/RESPONDENT:
MUHAMMED JALEEL,
AGED 37 YEARS, S/O.AYAMU, KADAYAN KADAN HOUSE,
VAZHANKADA.P.O., MALAPPURAM DISTRICT, PIN-679357.

BY ADV. SRI.G.SREEKUMAR (CHELUR)

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21.3.2019,
ALONG WITH MAT.APPEAL.198/2019, THE COURT ON 10.04.2019, DELIVERED
THE FOLLOWING:
Mat.Appeal.Nos.182 198 of 2019 : 2 :

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE K.HARILAL

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941

Mat.Appeal.No. 198 of 2019

O.P.NO.628/2015 of FAMILY COURT, OTTAPPALAM, DATED 07-02-2019

APPELLANTS/RESPONDENTS:

1 ABDUL RASHEED,
AGED 53 YEARS,
KILAYIL HOUSE,MUNNURKODE.P.O.,
OTTAPALAM TALUK,PALAKKAD DISTRICT,PIN-679502.

2 SUHARA,
AGED 43 YEARS,
W/O.ABDUL RASHEED,KILAYIL HOUSE,
MUNNURKODE P.O., OTTAPALAM TALUK,
PALAKKAD DISTRICT,PIN-679502.

3 SAJARUDHEEN,
AGED 29 YEARS,
S/O.ABDUL RASHEED,KILAYIL HOUSE,
MUNNURKODE P.O.,OTTAPALAM TALUK,
PALAKKAD DISTRICT,PIN-679502.

BY ADVS.
SRI.JACOB SEBASTIAN
SRI.K.V.WINSTON
RESPONDENT/PETITIONER:
MUHAMMED JALEEL,
AGED 39 YEARS,
S/O.AYAMU,KANDAN KADAN HOUSE,
VAZHANKADA.P.O.,ANAMANGAD,
MALAPPURAM DISTRICT,PIN-679357.

BY ADV. SRI.G.SREEKUMAR (CHELUR)

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21.3.2019
ALONG WITH MAT.APPEAL.182/2019, THE COURT ON 10.04.2019,
DELIVERED THE FOLLOWING:
Mat.Appeal.Nos.182 198 of 2019 : 3 :

K.HARILAL

T.V.ANILKUMAR, JJ.
———————————–
Mat.Appeal Nos.182 and 198 of 2019
————————————
Dated this the 10th day of April, 2019

JUDGMENT

T.V.ANILKUMAR, J.

Common judgment in O.P.608 and 628 of 2015 passed by

the Family Court, Ottapalam on 7.2.2019 is challenged by the

petitioner in O.P.608/2015 in Mat.Appeal 182/2019 and by the

respondents in O.P.628/2015 in Mat.Appeal 198/2019. The

common respondent in both Mat.Appeals is the father of the

girl child, Fathimathul Jasla, who was aged only 2 years on the

date of institution of original petitions before the court below.

2. The grand mother of the child filed O.P.No.608/2015

for a decree of perpetual prohibitory injunction restraining the

respondent herein from taking forcible custody of the child

from her. The respondent severely opposed the petition and
Mat.Appeal.Nos.182 198 of 2019 : 4 :

simultaneously filed O.P.628/2015 for a decree claiming

permanent custody of the child as against the appellants in

Mat.Appeal No.198/2019 who are the grand parents of the

child and also one of their sons. The Family Court while

dismissing O.P.608/2015 for perpetual injunction chose to

decree O.P.628/2015 entrusting the child to the permanent

custody of respondent/father subject to the appellants’ limited

right of visitation of the child once in a month at the premises

of Family Court, Ottapalam. Being aggrieved by the common

judgment, these two separate appeals were filed.

3. Both O.Ps were jointly tried by the court below

taking up O.P.No.608/2015 filed by the appellant, grand

mother as the main case. The reference in this appeal to the

parties, unless the context otherwise indicates, will be as per

their rank in Mat.Appeal No.182/2019.

4. Appellant’s daughter Sajna was married to

respondent on 2.6.2011. She died at the matrimonial house on
Mat.Appeal.Nos.182 198 of 2019 : 5 :

8.5.2015. The marriage, the paternity of child and death of

Sajna are not disputed facts in these appeals. According to the

appellant, right from the date of death of her daughter Sajna,

the child was taken care of and maintained at the house of the

grand parents and family. The respondent declined to take

care and maintain her as if he was not interested in the child.

Sajna is said to have died under suspicious circumstances and

therefore, a Crime No.91/2016 under Sections 498A, 304B, 302,

201 and Section 149 of IPC was registered against the

respondent by Perinthalmanna Police, at the initiation of her

father, PW2 and investigation is in progress. Respondent is

alleged to be a drunkard and spendthrift who used to ill treat

the deceased Sajna demanding dowry. It is his cruel conduct

towards wife that is said to have resulted in her death.

Respondent is alleged to be ambitious enough to remarry for

his pleasure forgetting that he has a child to look after. He is

totally disqualified and unfit to seek permanent custody of the
Mat.Appeal.Nos.182 198 of 2019 : 6 :

minor ward. No congenial environment exists in the family of

respondent and if the child is allowed to stay with him, it will

certainly ruin ward’s life. On 23.11.2015, respondent is alleged

to have made a vain attempt to remove the child from the

custody, but it was foiled. Enumerating these allegations, the

grand mother filed O.P.608/2015 for a decree of permanent

prohibitory injunction.

5. The Family Court, Ottapalam, during the pendency

of O.P.No.608/2015, was pleased to grant an ad interim ex parte

injunction order, restraining the respondent from removing the

child from the custody of the appellant.

6. The respondent filed defence statement. The

contentions in the defence statement are identical to those

taken by him in the petition in O.P.628/2015 also.

7. Respondent’s allegation is that, right from the date

of death of his wife, he alone maintained Fathimathul Jasla and

took care of her affairs. There was no occasion for the
Mat.Appeal.Nos.182 198 of 2019 : 7 :

appellant or her family members to take care of the child or

protect her. The child and the father were so intimately

attached with each other to such an extent that the child used

to call him as ‘Umma’. He is not responsible for death of Sajna

and as a matter of fact, her death was due to heart failure. She

was an epileptic patient even before marriage which had been

suppressed, but however, she was used to be treated at P.K.Das

Hospital for her illness. The life of child with him will be most

congenial for her all round growth and development. Another

girl child of almost equal age born to his own brother is staying

in his family house and therefore Fathimathul Jasla will

certainly find her stay with respondent more comfortable than

elsewhere. He is a driver by profession and has adequate

means to maintain the ward. He is the natural guardian of the

child and further very young also. The child was in his sole

custody till 22.11.2015 when it was stealthily removed from his

custody.

Mat.Appeal.Nos.182 198 of 2019 : 8 :

8. He continues to allege that when the appellant

pestered him with repeated demands for custody of the child,

he approached the Secretary of Bidathi Juma Masjid Mahal

Committee to intervene in the matter and evolve a solution

with respect to the custody of the child. He moved the Child

Welfare Committee, Malappuram also in the meantime to

intervene in the matter. The members of Mahal Committee of

both parties held a meeting and it is stated that, on 9.10.2015 an

amicable settlement was arrived at, whereby the respondent

agreed to take the child to the appellant every Sunday,

allowing the ward to stay at her house since morning till

evening. According to the respondent, this arrangement

continued for a few weeks, but on 22.11.2015 surprisingly and

under some false pretext, the appellants in Mat Appeal

No.198/2019 declined to return the child but instituted

O.P.608/2015 for injunction and obtained an interim order of

temporary injunction against alleged forceful removal of the
Mat.Appeal.Nos.182 198 of 2019 : 9 :

child from their custody misrepresenting facts.

9. The respondent’s case is that the Child Welfare

Committee deputed RW5, Chairman of Indira Priyadarsini

Cultural Centre to prepare a Social Investigation Report and

report the true state of affairs in which the ward was placed, to

the Committee. Ext.B4 Social Investigation Report revealed the

respondent to be a loving parent and nothing rendered him

unfit for permanent custody of the child. A settlement formula

suggested by the Committee in the interest of the child was also

accepted by the parties which, however, did not materialize. In

the meantime, the respondent moved the High Court and

obtained Ext.A1 order dated 3.4.2017 in O.P.(FC)No.687/2016,

whereby the temporary custody of the child was granted to

him also since 7.4.2017 onwards once in every alternate week.

The child thereafter continues to be in the custody of both the

appellant and the respondent as per the arrangement made by

the High Court. In the meantime, the appellant admitted the
Mat.Appeal.Nos.182 198 of 2019 : 10 :

child to Moloor Central School, Nellaya in L.K.G. and

respondent also did the same exercise by admitting the child in

MIC English Medium School, Thazhakkode West, to his liking.

On these facts, the respondent claimed permanent custody of

the child in O.P.628/2015. The defence statement of appellant in

O.P.628/2015 contains same allegations which she raised in the

original petition in O.P.608/2015.

10. The Family Court, Ottapalam considered two

essential questions as to (i) whether the appellant was entitled

to obtain a decree of perpetual prohibitory injunction against

the father of the ward restraining him from taking forcible

custody of the child from the appellant and also (ii) whether he

is fit and qualified enough to secure permanent custody of the

ward in preference to the grand parents.

11. The grand mother, appellant was examined as PW1.

Her husband too was examined as PW2. The Manager of

Moloor Central School, Nellaya where the child was admitted
Mat.Appeal.Nos.182 198 of 2019 : 11 :

to L.K.G. was examined as PW3. Documents proving

admission to school and evidencing payment of tuition fees

were tendered and marked in evidence as Exts.A2 to A6 and A8

and A9 and Exts.X1 to X3. The respondent also examined his

own witnesses and tendered Exts.B1 to B13 in evidence.

Besides his testimony as RW1, he summoned and examined the

Secretary of Mahal Committee Rahmaniya Juma Masjid

Committee and also another member thereof as RWs 2 and 4

respectively to prove Ext.B5 decision of the Mahal Committee

dated 9.10.2015. The records relating to admission of child to

MIC English school, Thazhakkode West at the instance of the

respondent were proved as Exts.X4 and B6 to B9. The

treatment records of deceased Sajna marked as Exts.B2, B3 and

B10 were proved through RW3, Doctor in P.K.Das Hospital. The

Social Investigation Report prepared by RW5 at the instruction

of the Child Welfare Committee, Malappuram was marked in

evidence as Ext.B4. The Deputy Superintendent,
Mat.Appeal.Nos.182 198 of 2019 : 12 :

Perinthalmanna proved Ext.B13 Report intimating that the

Crime No.91/2016 on the file of Perinthalmanna Police Station

was referred as false.

12. On consideration of the entire evidence on record,

the court below entered into a finding that the child was ever

since the death of Sajna, taken care of and maintained by the

respondent, father alone as proved by Ext.B5 settlement

agreement arrived at, at the instance of the Mahal Committees

of both parties. Finding that there was material suppression of

Ext.B5, the court below refused to grant injunction and

accordingly dismissed O.P.No.608/2015. No significance was

attached to Crime No.91/2016 nor to the alleged suspicious

circumstances under which the mother of the child died at the

matrimonial house. It was of opinion that stay of child with the

respondent, the biological father alone would promote the

welfare of the child. It did not come across any of the

circumstances which could disqualify the respondent from
Mat.Appeal.Nos.182 198 of 2019 : 13 :

being a fit and competent guardian of the child.

O.P.No.628/2015 filed by the father for permanent custody of

the child was thus decreed in favour of the respondent.

13. After hearing the counsel appearing on both sides,

we consider the following points being worthy of consideration:

1. Whether the respondent/father in these Mat.Appeals

could establish himself to be entitled to permanent

custody of the child, Fathimathul Jasla, who is presently

5 years?

2. Whether the criminal proceeding initiated against the

respondent in Crime No.91/2016 has any relevance and

impact in deciding the question of custody of the child?

3. Whether welfare of the ward demands permanent

stay of her with respondent/father and the decree for

permanent custody granted by the court below requires

any interference?

4. Whether appellant is entitled to a decree of
Mat.Appeal.Nos.182 198 of 2019 : 14 :

permanent injunction restraining the respondent/father

from interfering with and also removing the child from

the custody of appellant?

14. All the points are taken up together for consideration

for the sake of convenience.

15. When there is rival claim for guardianship, the court’s

power to appoint the most suitable person among the

contestants could be exercised only upon taking into view those

considerations which weigh in favour of the welfare of the child.

In other words, the welfare of the child is of paramount

consideration than the interse rights between the rival

contestants for permanent custody. This principle is given effect

to in Section 17 of the Guardians and Wards Act, 1890 (for short

‘the GW Act’) and reiterated in Athar Hussain v. Syed Siraj

Ahmed and Others [2010 KHC 4004] and Nil Ratan Kundu and

Another v. Abhijit Kundu [(2008) 9 SCC 413] as rightly

submitted by the learned counsel for the appellants. In other
Mat.Appeal.Nos.182 198 of 2019 : 15 :

words, before deciding to grant permanent custody of child, the

court shall take into account the totality of the circumstances in

which the child is placed and consider whether entrustment of

child to the permanent custody of the petitioning guardian

would be in the interest of welfare of the child. In this process,

the character of the proposed guardian and also his capacity to

maintain the child are also matters requiring consideration. It is

equally mandatory that the court has to interact with the child to

ascertain the preferential choice which the child may make if he

or she is old enough to form an intelligent preference.

16. Sofar as this case is concerned, the court below

interacted with the child but was not able to ascertain her wish

since the child was not of such a matured age as to be able to

form intelligent preference. The impression of the court after

interacting with the child was recorded in paragraph 17 of the

impugned common judgment.

17. As regards the character of the respondent, the
Mat.Appeal.Nos.182 198 of 2019 : 16 :

appellant’s allegation is that he is a drunkard and spendthrift

and seldom demonstrated any interest in the welfare of the

child. This allegation was not proved or substantiated by the

appellant by any convincing evidence. No specific incident was

alleged either in the pleadings or evidence to the effect that the

child was ever subjected to any act of cruelty. It is also very

pertinent to note that Ext.B4 Social Investigation Report

prepared by RW5, Chairman of Indira Priyadarsini Cultural

Centre did not indicate that the respondent/father was a man of

any immoral character or disqualified for permanent custody of

the ward. He incorporated along with Ext.B4, a compromise

agreement entered into between parties with respect to the

custody of the child. The report itself indicates that the

agreement could not fructify and be put into effect for reasons

best known to the parties alone. It suffices to say that neither the

testimonies given by appellants 1 and 2 nor their witnesses and

Ext.B4 Social Investigation Report disclosed objectionable
Mat.Appeal.Nos.182 198 of 2019 : 17 :

conduct on the part of the respondent, towards the child

disentitling him to a claim for permanent custody of the child.

18. The appellant’s contention is that immediately after

the death of her daughter Sajna, the child was taken care of and

maintained by her and the family as if the respondent did not

show any interest in the welfare of the minor ward. Not only

that this allegation was not proved, but it was belied also by

evidence on record. The respondent contended that right from

the date of death of her wife, he alone undertook the custody of

the child maintaining her and it lived with him very happily till

22.11.2015 when he was tactfully deprived of its custody. This

contention seems to be probable in view of Ext.B5 amicable

decision dated 9.10.2015 taken by the Mahal Committees of both

parties settling the issue regarding the custody of the child on

the motion of the respondent himself when he was allegedly

pestered by the appellant with repeated demands for custody of

the child. Ext.B5 was proved through RW2, Secretary of
Mat.Appeal.Nos.182 198 of 2019 : 18 :

Rahmaniya Juma Masjid Committee, Bidathi and also one of the

members of the Mahal examined as RW4. Ext.B5 Committee

decision shows that respondent agreed to take the child to the

house of appellants every Sunday allowing her to stay with them

since morning till the evening of the day. This arrangement

continued for a few weeks also. But according to respondent, on

22.11.2015, under some false pretext, the child was not returned

by appellant. Instead she filed O.P.608/2015 and obtained an

interim order of injunction restraining him from taking forcible

custody of the child.

19. PW1, appellant and her husband, PW2 were not

prepared to admit in their pleadings before the Family Court

that there was any amicable settlement at the instance of both

families in the joint meeting of their Mahal Committees. But

during the cross examination, these witnesses admitted that

mediation was actually held but the settlement arrived at was

limited only to resolution of dispute with respect to gold as well
Mat.Appeal.Nos.182 198 of 2019 : 19 :

as custody of a vehicle. This admission in the cross examination

is not consistent with their early version in the pleadings.

Furthermore, PW2, grand father of the child, during his cross

examination admitted that he had given Ext.B4(C2) statement

before RW5, Chairman of Indira Priyadarsini Cultural Centre

and all that was recorded therein was true. In the said

statement, he is seen to have admitted that under Ext.B5

settlement arrived at in the meeting of Mahal Committees, issue

with respect to custody of the ward was also discussed and

following the compromise between parties, the respondent used

to entrust custody of the child with appellants for a few weeks

every Sunday. Eventhough he was not confronted with Ext.B4

(C2) previous statement as required by Section 145 of Indian

Evidence Act, 1872, it was rightly admitted under Section 14 of

the Family Courts Act, 1984 which dispenses with strict rule of

admissibility. This conduct on the part of PW2 proves that the

custody of the child devolved only on the respondent
Mat.Appeal.Nos.182 198 of 2019 : 20 :

immediately after the death of his wife, Sajna. Therefore itself,

the allegation that he did not show any interest in the welfare of

the child and was only interested in contracting a second

marriage as if he was unconcerned with the affairs of the child is

quite improbable and also contrary to the evidence on record.

20. Eventhough the Family Court refused to grant interim

custody to the respondent, he secured Ext.A1 order from High

Court in O.P.(FC)No.687/2016, directing the appellants to hand

over custody of the child to respondent every alternate week

from 7.4.2017 onwards. It is a fact that the grand parents of the

child admitted her in Moloor Central School, Nellaya in L.K.G.

on 6.2.2017 and she pursued her studies in the same school in

U.K.G. also. This is not disputed by respondent also and even

otherwise also, Exts.A2, A3, A4, A8 and A9(a) cash receipts for

payment of fees etc. prove the child’s admission to the Moloor

Central School, Nellaya. It also remains to be a fact that the

respondent too after he got interim custody of the child as per
Mat.Appeal.Nos.182 198 of 2019 : 21 :

the direction of the High Court in Ext.A1 order, admitted the

child in an another School of his choice called MIC English

Medium School. Exts.B6 to B9 and Ext.X4 are records which

prove that the child used to attend that school as well.

21. The learned Judge of the Family Court noted the fate of

the unfortunate child to attend two different schools in the same

academic year on account of the unhealthy fight as between

grand parents on one side and father on the other side. The

court below probed into the sustainability of environment

wherein the child could find herself to be comfortable and it held

on evidence that her stay with the father/respondent alone

would promote her welfare in all respects including education.

In the house of RW1/respondent, his parents and other members

are also residing. A child of his brother almost equal in age also

resides in his family and this would certainly give Fathimathul

Jasla a congenial company. It is a fact that the child cannot hope

to get such a company in the house of the appellants. The court
Mat.Appeal.Nos.182 198 of 2019 : 22 :

below also found on evidence that MIC English Medium School

is much more closer to the house of RW1 whereas Moloor

Central School is 10 Kms away from the house of the appellants.

22. RW1 is a Driver by profession who has enough

resources to maintain the child. Quite naturally, the grand

parents of the child are advanced in age than RW1 whose life

time is naturally longer. Considering the circumstances and

environment in which the child could be better placed, the court

below, according to us, rightly found that her life with father/

respondent alone would promote her interests and welfare in

life. On re-appreciating the evidence before us also, we do not

find any reason to interfere with the finding of the court below

that the respondent/father is the fit and proper person to whom

permanent custody of the child could be safely entrusted.

According to us, the decision to refuse to grant permanent

injunction and dismiss O.P.608/2015 taken by the court below is

sound.

Mat.Appeal.Nos.182 198 of 2019 : 23 :

23. The learned counsel for the appellants advanced an

argument that the very fact that respondent is involved in Crime

No.91/2016 by itself would disqualify him from functioning as

the guardian of the child. According to him, the criminal

antecedent of the respondent is a relevant fact to be taken into

account by the Family Court while deciding the claim for

permanent custody of the child and in this respect, our attention

was drawn to paragraphs 62 to 64 of Nil Ratan’s case (supra)

and paragraph 8 of the decision reported in Yogesh Kumar

Gupta v. M.K.Agarwal and Another [2009 KHC 7140]. But we

find that the said decisions are clearly distinguishable on facts so

far as the present case before us is concerned. Crime No.91/2016

registered against the respondent for offences punishable

Sections 498A, 304B, 302, 201 and Section 149 of IPC was referred

as false by RW6, Deputy Superintendent of Police through

Ext.B13 refer report. The investigating agency could not come

across any circumstance incriminating the respondent so as to
Mat.Appeal.Nos.182 198 of 2019 : 24 :

hold him as being responsible for the death of Sajna.

24. It is true that as per Ext.A7 letter dated 21.12.2017

issued from Additional Chief Secretary, the crime is still under

re-investigation. In our opinion, only because the crime against

the respondent is still under re-investigation after issue of

Ext.B13 refer report, it could never be taken as a relevant fact for

refusing claim of respondent for custody if the claim could be

shown to be otherwise legitimate and justifiable. It is an

admitted fact that till the death of Sajna, no complaint

whatsoever either verbal or written had been made against the

respondent before any of the authorities raising any kind of

allegation of ill treatment demanding dowry. The appellants

made allegations implicating respondent as being responsible

for the death of Sajna for the first time only on 24.11.2015, i.e.

after elapse of six months since the date of death. On the other

hand, Nil Ratan’s case (supra) is based on an incident where the

father of the child was found on evidence to be involved in crime
Mat.Appeal.Nos.182 198 of 2019 : 25 :

and was arrested also by police upon cogent materials which

sufficiently incriminated the accused. Therefore, we hold that

merely because a crime alleging dowry death is under further

investigation, the claim for custody of minor ward cannot be

denied to the respondent if he is otherwise legitimately entitled

to custody especially when the complaint against him was

referred as false on a former occasion. On facts, evidence and

also principles of law, we do not find any reason to disagree with

the view of the court below that the respondent, father is a fit

and proper person to be entrusted with permanent custody of

the child. We are satisfied that the welfare of the child demands

her stay with the father.

25. The learned counsel for the appellants took us to the

discussion made by the court below in paragraph 13 of the

impugned common judgment referring to a Crime No.849/2018

of Perinthalmanna police station registered under Sections 5 and

6 of the Protection of Children from Sexual Offences Act, 2012
Mat.Appeal.Nos.182 198 of 2019 : 26 :

(for short ‘the POCSO Act’) and taking a view that it was a false

incident. According to the learned counsel, the character of the

guardian being one of the essential components stipulated in

Section 17 of the GW Act, for determining the claim for

permanent custody, the alleged sexual abuse of the ward by the

parent himself certainly disqualifies him from being entitled to

plead for permanent custody of the child. We are of the view

there is nothing on record to probabilise the allegation as being

true.

26. We notice that none of the medical or any records in

Crime No.849/2018 of Perinthalmanna police station was

produced before the court below and it is not known also as to

whether statement of the child was recorded by the authorities

concerned. What appears from paragraph 13 of the impugned

judgment is that while the respondent had the occasion of being

in custody of the child pursuant to Ext.A1 order of High Court,

he sexually abused the child. The child is stated to have
Mat.Appeal.Nos.182 198 of 2019 : 27 :

complained to PW1, when it was returned to her custody, about

pain on her stomach and private part, whereupon she was taken

to a Gynecologist in Taluk Hospital, Ottapalam. The Doctor

then informed the matter to the police officials at

Perinthalmanna who registered Crime No.849/2018 against the

respondent under the POCSO Act.

27. The learned counsel for the appellants wanted us to

call for statement of the child, if any, recorded under Section 164

of the Code of Criminal Procedure and peruse the same. We do

not feel ourselves being legally bound in this appeal to go to

such an extent in the light of the proved facts and circumstances

and also the over all conduct of the appellants in the case. In

any view of the matter, we notice that no such request was

placed before the court below seeking to call for such a

statement before the court if such a course of action was

permissible under law.

28. In our opinion, mere registration of a crime under the
Mat.Appeal.Nos.182 198 of 2019 : 28 :

provisions of the POCSO Act against the parent of the ward is no

assurance to a Family Court that allegation of sexual abuse made

against him is nothing but true. The allegation made against the

biological father could be true in rare cases, but could be wholly

false also. The Family Court, before which such registration of

crime is proved must necessarily apply its mind and endeavour

to find out the true circumstances which activised the

registration rather than being allured by the mere fact of

registration. Unless a very cautious approach is adopted by the

Family Court to ensure that information on which crime was

registered is not frivolous and vexatious, many a innocent parent

fighting for custody of his own ward would be victim of false

implication of crimes under the POCSO Act. There is a growing

tendency in the recent years to foist false crimes against the

biological father alleging sexual abuse of own child misusing the

provisions of the POCSO Act when serious fight for custody of

ward is pending resolution before the Family Courts. The
Mat.Appeal.Nos.182 198 of 2019 : 29 :

Family Courts to whose notice registration of crime under the

POCSO Act is brought owe an onerous responsibility to ensure

that the registration of crime against the parent is not a ruse for

defeating his legitimate claim for custody of the ward. The

Family Courts ought to examine the outcome of investigation of

the crime placed before the court and also take into

consideration all relevant facts and circumstances which would

help the Judge form a prima facie opinion as to whether the

allegation of sexual abuse of the ward is baseless or not. Each

case requires to be approached and evaluated on its own facts

and we realise that no hard and fast approach could be laid in

this respect at all. We do not mean to say that Family Courts

should disregard the materials collected by the investigating

agency in the crime and hold a total independent enquiry in

order to get at the truth or veracity of the allegation. We make it

clear that unless there are reliable materials capable enough to

convince the allegation of sexual abuse to be well founded, mere
Mat.Appeal.Nos.182 198 of 2019 : 30 :

registration of crime shall not be reckoned as a ground for

rejecting the claim of the parent for custody of the child.

29. Applying the test above, we find that the appellant

has not been able to establish by any materials that the allegation

of sexual abuse against the respondent is true or convincing. No

result of investigation has been placed either before the Family

Court or in appeal. We are told that respondent has not been

arrested in connection with the crime hither to despite

reasonably a long interval is over. Non arrest itself appears to be

one of the circumstances which doubts respondent’s alleged

involvement of the crime.

30. The entire background of the case in which the

allegation against the respondent came to be made also requires

to be appraised of. This is a case where right from the date of

death of the mother, custody of the child devolved on the

respondent. Following the rival claims for custody of the child,

the Mahal Committees of both the parties and also the Child
Mat.Appeal.Nos.182 198 of 2019 : 31 :

Welfare Committee intervened and came out with a settlement

agreement which did not materialise. Bitter enmity in the

relationship between parties must be reasonably presumed from

the above conduct of parties. Sofar as respondent is concerned,

he is put to an allegation that he is responsible for the death of

Sajna, but the same could not be substantiated hither to in spite

of exhaustive investigation being undertaken in this respect. The

case against him was referred as false also. It is also a fact that

pursuant to a move by the appellants for re-investigation, with

the Government, no tangible progress could be made in that

behalf. In this case, we are satisfied that the respondent has

neither been shown to have conducted himself in a manner

unbecoming of a father nor infringing the interest and welfare

of the ward.

31. The Family Court Judge, in his interaction with the

child in his chamber could not elicit anything in this regard

incriminating the father but only found that the child was so
Mat.Appeal.Nos.182 198 of 2019 : 32 :

immature enough to speak to facts and take preferential choice

of guardian with respect to her stay.

32. We fully agree with the view taken by the court

below that the registration of alleged crime against the

respondent is not sufficient to disentitle him to seek for

permanent custody of the child. We do not find any ground to

interfere with the finding of the court below that respondent is

entitled to permanent custody of the child. But at the same time,

we want to reiterate the settled principle of law that no order of

custody of ward is final and conclusive in as much as it is

always liable to further judicial scrutiny and modification by the

court depending on proof of substantial changes in the

circumstances that occur in the growing life of the ward and

guardian. When occurrence of substantial changes is brought to

the notice of the Family Court, it is bound, in appropriate cases

to modify the orders of custody no mater the original petition

itself has culminated in a decree for permanent custody and the
Mat.Appeal.Nos.182 198 of 2019 : 33 :

proceeding before the court has come to a logical conclusion.

33. The court below allowed the appellants to have

only a limited right of visitation and right to keep temporary

custody of the child on 1 st Saturday of every month at the

premises of Family Court, Ottapalam from 10.00 a.m. to 4.00

p.m. Considering the subsisting relationship of the child with

the appellants, we deem it fit and proper to modify and extend

the number of days of custody of the child granted by the court

below, to every Saturday in a month from 10.30 a.m. till 4.00

p.m. Point Nos. 1 to 4 are answered accordingly.

In the result, Mat.Appeal Nos.182 and 198 of 2019 are

dismissed confirming the common judgment dated 7.2.2019 of

the Family Court, Ottapalam subject to the modified visitation

right of the grand parents who are appellants 1 and 2 in

Mat.Appeal 198/2019. The child shall be handed over by the

respondent to the custody of the grand parents at the premises

of Family Court, Ottapalam every Saturday enabling the child
Mat.Appeal.Nos.182 198 of 2019 : 34 :

to stay with appellants 1 and 2 from 10.30 a.m. till 4.00 p.m.

The court below will be at full liberty to issue appropriate and

necessary orders with respect to the custody of the child on

the motion of either of the parties, on proof of the change of

circumstances in the life of the child, father and the grand

parents.

Sd/-

K.HARILAL
JUDGE

Sd/-

T.V.ANILKUMAR
JUDGE
Bb

[True copy]

P.A to Judge

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