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