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Vasu vs Vinayan on 29 March, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE ASHOK MENON

FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941

Mat.Appeal.No. 119 of 2013

AGAINST THE ORDER/JUDGMENT IN OA 177/2012 of FAMILY
COURT,KOZHIKODE DATED 19-10-2012

APPELLANTS/PETITIONERS:

1 VASU
S/O. SANKARAN, KAITHAVALAPPU, VALIYAKATH HOUSE,
ERATTACHIRA COLONY, BEYPORE AMSOM, DESOM,
KOZHIKODE TALUK, PIN 673015.

2 RAJANI
W/O. VASU, KAITHAVALAPPU, VALIYAKATH HOUSE,
ERATTACHIRA COLONY, BEYPORE AMSOM, DESOM,
KOZHIKODE TALUK, PIN 673015.

3 PRASANTH
S/O. VASU, KAITHAVALAPPU, VALIYAKATH HOUSE,
ERATTACHIRA COLONY, BEYPORE AMSOM, DESOM,
KOZHIKODE TALUK, PIN 673015.

BY ADV. SRI.P.V.KUNHIKRISHNAN

RESPONDENTS/RESPONDENTS:

VINAYAN
S/O. RAJAN, THEKKARAMPARAMBU HOUSE,
VELLAYIL AMSOM DESOM, PANICKER ROAD,
KOZHIKODE TALUK-673652.

BY ADV. SRI.T.G.RAJENDRAN

THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
29.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No. 119 of 2013
2

JUDGMENT

A.M.Shaffique, J.

This appeal is filed by the petitioners in

O.A.No.177/2012 of the Family Court, Kozhikode. The

petitioners are the grandfather, grandmother and uncle

of the minor child. The marriage between the mother of

the minor child and the respondent was solemnized on

19.04.2006. The mother of the minor child died on

23.07.2011. A criminal case came to filed under

Section 498A, I.P.C. on the premise that the minor’s

mother committed suicide by hanging and it was on

account of the harassment and demand of dowry by her

husband, the respondent herein. The Family Court,

after evaluating the materials placed on record,

rejected the claim of the petitioners and permitted the

father/respondent to continue custody of the minor

child. However, it was further directed to provide the

petitioners access to the minor child from 2 p.m. to 4

p.m. on every fourth Saturdays and also directed the
Mat.Appeal.No. 119 of 2013
3

petitioners to pay expenses of Rs.300/- to the

respondent on every access date.

2. At the time when the Original petition was

filed, the child was 5 years old. The learned Counsel

for the appellants submits that since the parents of

the mother were not satisfied with the investigation

conducted by the police, they sought for further

investigation, pursuant to which the respondent was

charged with the offence under Section 302, I.P.C. In

the light of the aforesaid change in circumstances, the

custody of the minor child has to be given to the

petitioners/appellants. It is also pointed out that

though a limited visitation was given to the

petitioners, the respondent is not complying with the

said request as well.

3. Apparently this is a case in which the

appellants points out certain change in circumstances

with reference to the charge of offence under Section

302 against the respondent for having committed murder

of the daughter of appellants 1 and 2. That apart, the

child is now about 11 years old. Therefore, while
Mat.Appeal.No. 119 of 2013
4

considering the application for custody, it is all the

more necessary that the wishes of the child also has to

be ascertained.

4. In the light of the aforesaid facts, we are of

the view that an opportunity is granted to the

petitioners to prove before the Family Court itself for

seeking custody of the minor child taking into account

the change in circumstances. Accordingly, this appeal

is disposed of giving liberty to the petitioners/

appellants to move the Family Court pointing out the

change in circumstances, in which event the Family

Court shall consider the matter in accordance with law

and after ascertaining the wishes of the minor child as

well. No costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

ASHOK MENON

dkr JUDGE

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