Kerala High Court
Kunhamu vs Kunhamu on 12 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942
OP (FC).No.410 OF 2020
AGAINST THE ORDER IN I.A NO.2 OF 2020 AND I.A NO.3 OF 2020
IN OP 107/2020 OF FAMILY COURT, KASARAGOD.
PETITIONER/2ND RESPONDENT :
KUNHAMU, AGED 69 YEARS,
S/O. ABDULLA, KARAYIL HOUSE, KOTTODI P.O,
RAJAPURAM , KASARGOD DISTRICT.
BY ADVS.
SRI.ABDUL RAOOF PALLIPATH
SRI.K.R.AVINASH (KUNNATH)
RESPONDENT/PETITIONER & IST RESPONDENT :
1 JASHIRA M.K., AGED 26 YEARS,
D/O. LATE IBRAHIM M.K. AND W/O. NOUSHAD K,
MAVUNGALKUNNIL HOUSE, PANATHUR P.O,
RAJAPURAM VIA, PANATHADY VILLAGE,
VELLARIKUNDU TALUK, KASARGOD - 671 532.
2 NOUSHAD K, AGED 34 YEARS,
S/O. KUNHAMU, RESIDING AT KARAYIL HOUSE,
KOTTODI P.O, KALLAR VILLAGE,
VELLARIKUNDU TALUK, KASARGOD - 671 532.
BY ADV. SHRI.JAWAHAR JOSE.
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
12.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P (F.C) No.410 of 2020 2
A.HARIPRASAD & P.V.KUNHIKRISHNAN, J J.
--------------------------------------
O.P (F.C) No.410 of 2020
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Dated this the 12th day of February, 2021
JUDGMENT
P.V.KUNHIKRISHNAN, J
Petitioner is the second respondent in O.P No.107 of 2020 on the file
of the Family Court, Kasaragod, which was filed by the first respondent
herein for the custody of her minor child aged 4 years. Originally the
second respondent herein who is the father of the child was alone in the
party array as respondent before the lower court in the custody petition.
Pending the original petition, the Family court passed Ext.P1 order, which
is extracted hereunder :
" Parties present. The respondent is reported leaving
India shortly. The respondent or his agent has to
produce and hand over the child on all Thursday to
mother at 10.30 AM in front of Sheristadar and can
take back the child from mother at 4.30 PM until
further orders in the facts and circumstances revealed.
Call on 16-03-2020. "
2. Challenging Ext.P1 order, O.P (F.C) No.200 of 2020 was filed
before this court by the first respondent. The petitioner herein, who is the
grandfather of the minor child was impleaded as an additional respondent
in the above O.P(F.C) by this court. Thereafter, this Court was inclined to
set aside Ext.P1 order mainly for the reason that it is not a speaking order.
Accordingly, as per Ext.P3 order, this Court directed the Family Court to
reconsider I.A Nos.2 and 3 of 2020 afresh after hearing both sides.
Consequently, Ext.P4 order is passed by the Family Court, by which the
following arrangements are made as far as the custody of the child is
concerned, which is extracted hereunder :
" In the result, IAs.02/2020 and 03/2020 are
allowed in part with the conditions that, on all second
Friday evening by 5 O' clock the respondent No.2
grandfather can take the child from the mother's
residence and on second Sunday evening by 5 O' clock
the child is to be entrusted back to mother. The child
shall not be taken abroad until further order. Mother
has to hand over the child for one month to the father
when he comes to India on leave, and after the expiry
of one month the first respondent father has to entrust
the child to the mother. If at all, the father is staying
here for more than one month, the child is to be with
the father for two weeks in a month and for the
remaining period with the petitioner wife. In all these
cases, the first respondent has to make arrangements
for handing over of the child at the residence of the
mother. It is mandatory that whether the child is with
the father or mother, the child is to be sent to school
regularly and his health matters also should be taken
care of, until further orders."
3. Challenging Ext.P4 order, this captioned O.P (F.C) is filed.
4. Heard the learned counsel for the petitioner and the first
respondent.
5. Learned counsel for the petitioner submitted that the child is
with the grandparents for the last several months. The child is not ready to
go with the mother. It is also contended that the court below has not
interacted with the child before passing the order. It is further submitted
that, after Ext.P4 order, an interim arrangement is made by the Family
Court on 13-01-2021 based on the submission of the parties that the
captioned O.P.(F.C) is pending before this court. The copy of the above
order dated 13.01.2021 was handed over to this Court by the learned
counsel. The arrangement made by the Family Court as per order dated
13-01-2021 which is subsequent to Ext.P4 order is extracted hereunder :
" 6. In these circumstances, this court do find
reasons to pass the following interim order :
a) Second respondent shall produce the minor
child before any Woman Senior Civil Police
Officer of Rajapuram Police Station on
every Sundays at around 9.00 AM.
b) Petitioner shall collect her child from the
supervision of the Woman Senior Civil
Police Officer, and produce the child back
before the Police Station, at around 5.00
PM.
c) Petitioner and R2 shall maintain a notebook,
noting the interim custody of the minor
child, under the supervision of a Woman
Senior Civil Police Officer of Rajapuram
Police Station.
d) Continue this arrangement, till the end of
February, 2021.
e) In case, parties are having any
inconvenience, that fact shall be
communicated to each other minimum two
days back.
CMO shall hand over free copy of this
order to the petitioner and second respondent.
Communicate a copy to the SHO, Rajapuram Police
Station for information and necessary action."
6. Learned counsel submitted that the above arrangement may be
continued till the original petition is finally disposed of. The counsel
submitted that the 1st respondent eloped with her school friend and the
child may not be entrusted to her.
7. Learned counsel for the first respondent submitted that she
filed an affidavit before this Court in this original petition narrating her
arguments. The counsel takes us through the averments in the affidavit,
which is extracted hereunder :
" 4. My only son, for whom I sought custody,
was all along with me, from the day of his birth on
23-12-2015. Due to a mistaken decision in my life, I
eloped with my schoolmate on 6-1-2020, and I was
taken into custody by the police on 11-1-2020.
Thereafter, on 12-1-2020, I was produced before the
Judicial First Class Magistrate Court at Hosdurg, for
recording my statement which is marked as Exhibit P6.
The person, with whom I eloped, has deserted me, since
the day, we were taken into custody by the police. So,
the learned jurisdiction Magistrate who has recorded
my statement has permitted me, to go along with my
mother.
5. I released my mistake which I committed
in my life. I was so happy to see my husband in the
court premises when I was produced before the
jurisdictional Magistrate Court. He requested me to
handover the child to him, temporarily, till he leave the
country to U.A.E where he is employed, as I decided to
go with my mother. I honestly believe his assurance, as
my husband, and handed over the child to him. My son
is studying at L.K.G at Boon Public School, Kallar,
which school locates within a distance of 10 kilometers
from my house.
6. I was so shocked in hearing from my
family members that the respondent has remarried
another woman by name Sufaida Latheefa, on 11-2-
2020, and he left the country during the last week of
February 2020. The respondent has not entrusted me,
with my son, as promised by him while he flew abroad,
which prompted me to file the petition before the
Family Curt. I was further shocked in seeing the
disgraceful allegation raised against me, that when I
was taken into custody from Wagamon in Idukki
District, I was found along with Mr.Suresh and three
drunken men, which allegation is blatantly false. "
8. Learned counsel for the first respondent/mother submitted that
the mother handed over the child to the second respondent/father on
12-01-2020. But now the father left India. Learned counsel further
submitted that the first respondent is not even allowed to see the child after
12-01-2020.
9. After hearing both sides, we do not want to make any
observation regarding the merit of the case. After considering the entire
facts and circumstances of the case, Ext.P4 order was passed by the Family
Court. But we are surprised to see the order dated 13-01-2021 passed by
the Family after Exhibit P4 order awaiting a final decision in the captioned
O.P.(F.C). We are of the firm opinion that the minor child need not be
dragged to the police station just to handover it to the other party. One of
the main grievances of the petitioner against Exhibit P4 order in this
original petition is that he is aged 69 years and he is not in a position to go
to the first respondent's house to take the child as directed in Exhibit P4.
According to us, this condition can be lifted. Learned counsel for the 1 st
respondent fairly submitted that the first respondent or her siblings will
hand over the child to the petitioner at his house as per Exhibit P4. That
modification can be made in Ext.P4. Therefore, this original petition is
disposed of with the following directions :
1) The Family Court, Kasaragod will dispose of O.P No.107
of 2020 as expeditiously as possible at any rate within
one month from the date of receipt of a copy of this
judgment.
2) The order dated 13-01-2021 in I.A No.8 of 2020 in O.P
No.107 of 2020 passed by the Family Court, Kasaragod
after Exhibit P4 order is set aside.
3) Ext.P4 order will continue till the disposal of O.P
No.107 of 2020. But we make it clear that the petitioner
need not take the child from the mother's residence.
Instead of that, the mother or her siblings will hand
over the child to the petitioner at his residence in
accordance with Exhibit P4 order. Similarly, the mother
or her siblings can take back the child from the
residence of the petitioner in accordance with Exhibit
P4 order.
A. HARIPRASAD,
JUDGE.
P.V.KUNHIKRISHNAN,
JUDGE
amk
APPENDIX
PETITIONER'S EXHIBITS :
EXHIBIT P1 TRUE COPY OF THE ORDER OF THE FAMILY
COURT, KASARGOD DATED 17.2.2020 IN I.A
2/2020 IN OP 107/2020.
EXHIBIT P2 TRUE COPY OF THE IA FILED BY THE
PETITIONER IN OPFC 200/2020 IS.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 19.08.2020
IN OPFC 200/2020 OF THIS HON'BLE COURT
EXHIBIT P4 TRUE COPY OF THE ORDER OF THE FAMILY
COURT, KASARGOD DATED 1.10.2020 IN
IA.2/2020 IN IA 2/2020 AND 3/2020 IN OP
1/7/2020.
EXHIBIT P5 TRUE COPY OF THE COMPLAINT DATED
6.1.2020 BEFORE THE SHO, RAJAPURAM
POLICE STATION.
EXHIBIT P6 TRUE COPYOF THE STATEMENT OF THE 1ST
RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE BIRTH CERTIFICATE OF
THE CHILD.
RESPONDENTS' EXHIBITS : NIL.
