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