Xxxx vs X
2021 Latest Caselaw 16890 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                              &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
                 MAT.APPEAL NO. 301 OF 2019
    AGAINST THE JUDGMENT IN OP 227/2017 OF FAMILY COURT,
                    OTTAPPALAM, PALAKKAD
APPELLANT/PETITIONER:

         XXXX
         AGED 27 YEARS
         XXX
         BY ADVS.
         JACOB SEBASTIAN
         K.V.WINSTON


RESPONDENT/RESPONDENT:

         XXX
         AGED 32 YEARS
         XXX.
         BY ADV SANTHEEP ANKARATH

     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
03.08.2021, ALONG WITH Mat.Appeal.309/2019, THE COURT ON
12.08.2021 DELIVERED THE FOLLOWING:
 Mat.Appeal Nos.301 & 309/2019

                                -:2:-



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                   &
         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
                   MAT.APPEAL NO. 309 OF 2019
    AGAINST THE JUDGMENT IN OP 226/2017 OF FAMILY COURT,
                      OTTAPPALAM, PALAKKAD
APPELLANT/PETITIONER:

           XXX
           AGED 27 YEARS
           XXX.
           BY ADVS.
           JACOB SEBASTIAN
           K.V.WINSTON


RESPONDENTS/RESPONDENTS:

    1      XXX.
           AGED 32 YEARS
           XXX.
    2      XXX
           AGED 58 YEARS
           XXXX.
    3      XXX.
           AGED 62 YEARS
           XXX.
           BY ADVS.
           SRI.SANTHEEP ANKARATH

     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 03.08.2021, ALONG WITH Mat.Appeal.301/2019, THE COURT ON
12.08.2021 DELIVERED THE FOLLOWING:
 Mat.Appeal Nos.301 & 309/2019

                                   -:3:-



                            J U D G M E N T

Dated this the 12th day of August, 2021

Kauser Edappagath, J.

The appellant in these appeals challenges the dismissal of

two Original Petitions filed by her before the Family Court,

Ottapalam: one for return of gold ornaments and cash; the other

one for the appointment of guardian of the minor.

2. The appellant and the respondent in Mat.Appeal

No.301/2019 (who is the first respondent in Mat.Appeal

No.309/2019) are the divorced spouses now. Their marriage was

solemnized on 24/12/2008 at Paramekkavu Temple at Thrissur. A

boy child was born to them on 27/6/2010. The marriage was

dissolved as per the decree in OP No.130/2018 on the file of the

Family Court, Ottapalam. OP No.227/2017 was filed by the

appellant for appointing her as the guardian of the minor child

and OP No.226/2017 was filed for return of gold ornaments and

cash. Those two original petitions were tried along with three

other original petitions filed between the parties in the court

below and a common judgment was passed. Both OP Mat.Appeal Nos.301 & 309/2019

Nos.226/2017 and 227/2017 were dismissed as per the impugned

judgment. Challenging the decree and judgment in OP

No.226/2017, Mat.Appeal No.309/2019 has been preferred and

challenging the decree and judgment in OP No.227/2017,

Mat.Appeal No.301/2019 has been preferred.

3. We have heard Sri.Jacob Sebastian, the learned

counsel for the appellant and Sri.Santheep Ankarath, the learned

counsel for the respondents.

4. We refer the status of the parties as they are shown in

Mat.Appeal No.309/2019, i.e., the appellant and the respondents.

5. The appellant is a dentist by profession. The first

respondent is an M.B.A graduate and at present runs a business

in imported wood at Sharjah. The second and third respondents

are the parents of the first respondent. At the time of marriage,

the appellant was studying for her graduation and the first

respondent was working as accountant at Dubai. After completing

the graduation, the appellant went to Dubai in April, 2009 and

joined the first respondent. Admittedly, they lived together in

Dubai along with their child till 27/9/2013. On 27/9/2013, the

appellant admittedly came back to Kerala leaving the child with Mat.Appeal Nos.301 & 309/2019

the first respondent. The appellant and first respondent give

different stories for the reason to leave Dubai. According to the

appellant, on 27/9/2013, the first respondent brutally assaulted

her and threw her out of the flat at Dubai where they were

residing and thereafter, he forcefully and deceitfully removed the

child from her custody without her consent. According to the 1 st

respondent, on 24/9/2013, he happened to saw the immoral

chatting of the appellant in her mobile phone with one Mr.Sarin

Antony Peter, who was her paramour, and on scrutiny of the face

book chat history of the appellant, he could realise that she was

maintaining extramarital relationship with three persons including

the one mentioned above. Then there was verbal altercations and

quarrel between them at their flat and ultimately on 27/9/2013,

she left Dubai leaving the child with him. Thereafter, the first

respondent filed OP No.130/2018 for divorce on the ground of

cruelty and adultery and the appellant filed OP No.225/2017 on

the ground of cruelty. The first respondent has filed yet another

original petition as OP No.129/2018 for return of gold ornaments

and money. Above three original petitions were jointly tried along

with the Original Petitions which are the subject matter of these Mat.Appeal Nos.301 & 309/2019

appeals. The original petition filed by the first respondent for

divorce on the ground of cruelty and adultery was allowed and a

decree of divorce was granted. The original petition filed by the

first respondent for return of gold ornaments and money was also

dismissed. The original petition filed by the appellant for divorce

was dismissed.

6. OP No.226/2017 was filed by the appellant seeking

return of 122 sovereigns of gold ornaments or its equivalent

value and `16,00,000/- from the respondents. It was alleged that

she was given 122 sovereigns of gold ornaments by her mother

at the time of marriage which were taken by the 2 nd respondent

from her on the next day of marriage and kept in a locker owned

by the 2nd respondent. It was further alleged that the mother of

the appellant who was examined as PW2 handed over a total sum

of `16,00,000/- on different occasions to the respondents who

misappropriated the same. In the counter statement filed by the

respondents, they denied the entrustment and misappropriation

of the gold ornaments and money.

7. To prove the possession, entrustment and

misappropriation of gold ornaments and money, the appellant Mat.Appeal Nos.301 & 309/2019

relies on her own oral evidence, the oral evidence of her mother

who was examined as PW2, Ext. A1 marriage album and Ext. A7

bank pass book. It is pertinent to note that in the petition itself,

the appellant has clearly pleaded the source of the gold

ornaments. It is pleaded that the gold ornaments were

purchased with the money raised by PW2 by disposing of a

landed property situated in Cherthala given to her by her parents

and also by prematurely closing down her SB account at the

Palakkad Noorani Post Office. It is further pleaded that PW2 had

also pledged her another landed property situated in Palakkad

and raised a loan of `3,00,000/-. But, nothing has been produced

to substantiate the above mentioned sources. There will,

definitely, be documentary evidence to prove the same. PW1 has

admitted that the entire gold ornaments were purchased from

Malabar Gold, Thrissur. PW2 also deposed so. But no bill has

been produced to show the purchase of gold ornaments. Even

PW2 admitted that there is bill for the gold ornaments purchased.

It is true that Ext. A1 marriage album would show that the

appellant was wearing gold ornaments on the wedding day. The

Division Bench of this Court in Mohammed Ali v. Raihanath Mat.Appeal Nos.301 & 309/2019

and Another (2015 KHC 820) has held the practice of passing

orders for return of gold ornaments merely by looking at

photographs without considering the question whether claim is

plausible is not permissible. Apart from the interested oral

testimony of PW1 and PW2, there is nothing on record to show

that the appellant had 122 sovereigns of gold ornaments at the

time of her marriage. There is also no convincing evidence to

prove the entrustment of the said gold ornaments with the 2 nd

respondent. The case of the appellant is that those gold

ornaments were kept by the 2 nd respondent in her locker. The

appellant has not even attempted to prove that the 2 nd

respondent was maintaining such a locker.

8. Regarding the claim for return of money, the case of

the appellant is that on four different occasions, her mother gave

a total sum of `16,00,000/- to the respondents. Even the

appellant admits that she came to know about the same only

subsequently. According to PW2, on first occasion, she paid

`5,00,000/- to the respondents 2 and 3, and on second occasion,

again she paid `5,00,000/- to them. But she could not say the

date on which the money was allegedly given. She further Mat.Appeal Nos.301 & 309/2019

deposed that in the year 2012, she gave `3,00,000/- each to the

first respondent on two occasions. She could not say the date of

those payments also. No evidence has been adduced to prove

the source of the said `16,00,000/-. Ext. A7 passbook would only

show that PW2 availed a loan of `3,00,000/- during 2008 and it

was closed in 2013. No independent evidence was examined to

prove the handing over of `16,00,000/-. For all these reasons, we

endorse the finding of the court below that the appellant failed to

prove the possession and entrustment of gold ornaments as well

as cash to the respondents.

9. In OP No.227/2017 filed by the appellant to appoint

her as the guardian of the minor son, it is alleged that the first

respondent stealthily grabbed the custody of the child from her

on 27/9/2013 when she left Dubai. It is further alleged that she

being the mother has a better claim for the custody of the child.

It is also alleged that the first respondent is leading a wayward

life and he is living at present with one Bincy and the child is not

safe in his custody. The appellant has also alleged that the first

respondent is suffering from mental disorder and is unfit to be

appointed as the guardian of the child. Considering the welfare of Mat.Appeal Nos.301 & 309/2019

the child, she has to be appointed as guardian, it was alleged. Per

contra, the first respondent contended that the appellant was

leading an adulterous life, that too with three men, which led to

their separation and the future of the child would be at risk if she

is appointed as the guardian of the child and the custody is

entrusted to her. He contended that the child is well taken care

of by him. If the child is removed from his custody, it would

adversely affect the welfare of the child, it was contended. The

court below after considering the rival contentions found that the

first respondent is the fit person to be appointed as the guardian

of the child in its best interest and, accordingly, the original

petition filed by the appellant was dismissed. However, visitation

right was granted to the appellant.

10. It is settled that the welfare of the child is of

paramount consideration in matters relating to the guardianship

and custody of the child. The first respondent is the father and

natural guardian of the child. Admittedly the child is in the

custody of the first respondent since 27/9/2013. At that time, the

child was aged only 3 years. Now the child has attained 11

years. There is nothing on record to suggest that the child is in Mat.Appeal Nos.301 & 309/2019

any way neglected or not taken care of by the father. The

evidence on record would show that the child has been given

proper care and education by the father. The child is now

studying at a school in Sharjah. The learned counsel for the

appellant has submitted that the appellant has now remarried

and she is employed at Qatar. The divorce was granted mainly on

the ground that the appellant was leading an adulterous life.

Even though it is contended by the appellant that the first

respondent is suffering from mental disorder and unfit to be

appointed as the guardian of the child, there is nothing on record

to substantiate the same. The first respondent is financially well

off and he is running a business of his own at Sharjah. It has also

come out in evidence that the first respondent is having his own

house at Kerala. The learned Family Court Judge had interacted

with the child and in the said interaction, the child expressed his

desire to live with the first respondent. Considering all these

aspects, we find no reason to upset the finding of the court below

that the appellant cannot be appointed as the guardian of the

minor child.

11. Couple divorced each other, not their child. The child Mat.Appeal Nos.301 & 309/2019

needs the care, love and affection of both parents. The parent

child relationship is a unique bond that nurtures the physical,

cognitive, emotional and social development of the child.

Parental affection shapes child's happiness in life. The Apex

Court in Yashita Sahu v. State of Rajastan [(2020) 3 SCC 67]

held that even if the custody is given to one parent, the other

parent must have sufficient visitation rights to ensure that the

child keeps in touch with the other parent and does not lose

social, physical and psychological contact with any one of the two

parents. Recently, the Apex Court again in Amyra Dwivedi

(Minor) through LRs v. Abhinav Dwivedi [(2021) 4 SCC 698]

has held that when the court grants visitation rights, these rights

should be granted in such a way that the parent, who is granted

the visitation right, can meet the child in an environment

conductive to the parent and the child.

12. The Court below granted only a minimal visitation right

to the appellant. The appellant was allowed to interact with the

child from 10 a.m to 4 p.m only at the court premises during mid

term and summer vacations. The learned Counsel for the

appellant sought for custody during the entire summer and Mat.Appeal Nos.301 & 309/2019

winter vacations. The learned Counsel for the respondents, on the

other hand, submitted that considering the character and past

conduct of the appellant, she shall never be given overnight

custody. True, the divorce was granted mainly on the ground of

adultery. There was a finding that the appellant/wife was leading

an adulterous life. The said finding has become final as well.

However, the proved infidelity or extramarital relationship cannot

by itself be a ground to deny the visitation or contact right of the

child to its mother so long as there is nothing to suggest that the

mother carried the extramarital affair in front of the child and

such relationship had any adverse impact on the child. One may

not be a good wife; still, she can be a good mother. The child

would require the love and care of the mother in the formative

years as well as during adolescence. There is nothing on record

to show that the child was in any way exposed to the extramarital

affair of the mother and it had any adverse impact on the child.

Thus, we are unable to accept the submission of the learned

counsel for the first respondent that visitation right or overnight

custody of the child cannot be given to the mother. As stated

already, the appellant is employed at Qatar and the first Mat.Appeal Nos.301 & 309/2019

respondent is employed at Sharjah. The parents of the appellant

are at Kerala. Hence, we are of the view that an arrangement has

to be made to provide the custody of the child to the appellant

for few weeks in every summer and winter holidays. There shall

also be an arrangement to give custody of the child to the

parents of the appellant.

13. In the light of the above findings, we dismiss

Mat.Appeal No.309/2019. We confirm the finding of the court

below in OP No.227/2017 that the appellant cannot be appointed

as the guardian of the minor child. However, we grant the

following visitation and contact rights to the appellant in

substitution of the visitation right granted in the impugned

judgment in OP No.227/2017.

(i) In every summer holidays of the school of the child, the first

respondent shall bring the child to Kerala and hand over

custody to the appellant for a total period of twenty days.

The said twenty days period can be split up into two, i.e.,

ten days each with an interval of 5 days in between. The

first respondent shall intimate the appellant one month in

advance about his such visit to Kerala.

Mat.Appeal Nos.301 & 309/2019

(ii) In the event the appellant visits Kerala during winter

holidays, she shall intimate the said visit to the first

respondent in advance and the first respondent shall bring

the child to Kerala and hand over custody for a period of 7

days to the appellant.

(iii) In addition to the above, whenever the first

respondent comes to Kerala with the child, he shall hand

over the custody of the child to the grandmother for two

days.

(iv) The appellant also is permitted to make video call

through any available online platform to the child on every

Thursday and Friday between 6.00 p.m and 7.00 p.m. (UAE

time) The first respondent shall co-operate with the same.

Mat. Appeal No.301/2019 is allowed in part to the above

extent. The parties shall bear their respective costs.

Sd/-

A.MUHAMED MUSTAQUE JUDGE Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp

...16 Mat.Appeal Nos.301 & 309/2019

The extract of the judgment mentioned in paragraph 12 at

page 13 of the judgment dated 12.08.2021 in Mat.Appeal

301/2019 & Mat.Appeal 309/2019 stands clarified as follows as

per order dated 13.09.2021 in IA 4/2021 in Mat.Appeal 301/2019

and IA 1/2021 in Mat.Appeal 309/2019:

The sentences in the 12th paragraph on the 13 th page of the

judgment "True, the divorce was granted mainly on the ground of

adultery. There was a finding that the appellant/wife was leading

an adulterous life. The said finding has become final as well" -

shall be clarified by adding that "the said finding has been set

aside in Mat.Appeal Nos.921/2019 and 962/2019 dated 24/3/2021

and divorce was granted based on mutual consent."

Sd/-

Joint Registrar Mat.Appeal Nos.301 & 309/2019

APPENDIX OF Mat.Appeal No.301/2019

APPELLANT'S EXHIBITS: NIL

RESPONDENT'S EXHIBITS

ANNEXURE R1(a) TRUE COPIES OF THE PHOTOGRAPHS (2 NOS.) SHOWING MOTHER OF THE APPELLANT ALONG WITH THE CHILD TAKEN IN SOBHA CITY MALL