Kerala High Court
Shabin S.S vs Kunjumon K.A on 22 February, 2021
1
Mat.Appeal.No.828 OF 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942
Mat.Appeal.No.828 OF 2019
AGAINST THE ORDER/JUDGMENT IN OP 808/2018 DATED 22-08-2019
OF FAMILY COURT, ALAPPUZHA
APPELLANT/S:
SHABIN S.S.,
AGED 32 YEARS
S/O.SHAJI, PUTHANVELIVEETTIL, VARANAM P.O.,
THANNEERMUKKAM PANCHAYATH, CHERTHALA THALUK,
ALAPUZHA DISTRICT, PIN - 688 555.
BY ADV. SRI.P.V.JEEVESH
RESPONDENT/S:
1 KUNJUMON K.A.,
S/O.LATE ALIYAR, KUTHUPURATHUCHIRA VEEDU, CHERTHALA
MUNICIPALITY, VARANADU P.O., CHERTHALA THALUK,
ALAPUZHA DISTRICT, PIN - 688 539.
2 NAJEENA,
AGED 45 YEARS, W/O.KUNJUMON, KUTHUPURATHUCHIRA
VEEDU, CHERTHALA MUNICIPALITY, VARANADU P.O.,
CHERTHALA THALUK, ALAPUZHA DISTRICT, PIN - 688 539.
R1-2 BY ADV. SRI.B.PRAMOD
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
Mat.Appeal.No.828 OF 2019
A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
======================
Mat Appeal No.828 of 2019
======================
Dated this the 22nd day of February, 2021.
JUDGMENT
A.MUHAMED MUSTAQUE , J.
The matter relates to the guardianship and custody
of the minor child.
2. The father is the appellant. The respondents
are maternal grandparents of the child. Mother of the
child committed suicide. Thereafter, the child was in
the custody of the maternal grandparents.
3. Father approached the Family Court to
appoint him as a guardian and to have custody of the
child. The Family Court after considering the facts,
passed the following order:
(1) The petitioner shall be at liberty to visit the child
between 4 pm ad 6 p.m on every Tuesday and
Thursday, and on emergency situations like illness
etc.
(2) The child shall be given to the overnight custody
of the petitioner one day in a week, from 5 p.m of
Mat.Appeal.No.828 OF 2019
every Saturday till 5 p.m of the Sunday.
4. The Family Court found that it is not desirable
to separate the child from the custody of maternal
grandparents. The Family Court also found that in the
absence of any person other than the father at his
home to take care of the child it would be inappropriate
to give the custody of child to the father.
5. We directed the parties to appear before this
Court in person. Today, father and maternal
grandparents along with child are present. We
interacted with them.
6. The father is a painter by profession.
Maternal grandfather is a goods auto rickshaw driver.
According to the father, apart from him, his mother is
available at home. According to the grandparents, apart
from grandmother, one of her daughters studying in
plus-two is available at home.
7. The welfare of the child is the concern of the
Court. The child appears to be in the custody of the
maternal grandparents for a long period. However, we
Mat.Appeal.No.828 OF 2019
cannot overlook the right of the father to have custody.
There appears to be a case pending against the father
and his family members under Secs 498A and 306 of
the Indian Penal Code. Since the child is enjoying
company of the maternal grandparents, we find that it
may not be proper to give exclusive custody to the
father for the time being. The father is working as
painter. He may not be able to care the child, who is
only 5 years old.
8. Considering the overall circumstances, we are
of the view that the father should be given custody on
weekend from Friday 5.00 p.m till ensuing Monday
8.00.a.m. The father shall pick up the child from the
house of maternal grandparents at 5.p.m on every
Friday and shall return the child till ensuing Monday at
8.00 a.m. Both parties are free to seek modification in
future based on the change of circumstances. The
father is also permitted to take the custody of the child
on 10.3.2021 for the ceremony of circumcision
scheduled on 11.3.2021 and only need to handover the
Mat.Appeal.No.828 OF 2019
child on 16.3.2021.
The appeal is disposed of modifying the impugned
order as above.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
Sks/22.2.2021 JUDGE
Mat.Appeal.No.828 OF 2019
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 THE TRUE COPY OF THE SALE DEED
EXECUTED INFAVOUR OF THE APPELLANT,
DATED 13/6/2013.
ANNEXURE A2 THE TRUE COPY OF THE SALE DEED DATED
16/10/2003 IN FAVOUR OF THE PARENTS
OF THE APPELLANT.
ANNEXURE A3 THE TRUE COPY OF THE SALE DEED DATED
12/11/1987, INFAVOUR OF THE PARENTS
OF THE APPELLANT.
ANNEXURE A4 THE TRUE COPY OF THE BUILDING TAX
RECEIPT OF THE RESIDENTIAL BUILDING
OF THE FATHER OF THE APPELLANT.
ANNEXURE A5 THE TRUE COPY OF THE RATION CARD
ISSUED IN FAVOUR OF THE MOTHER OF THE
APPELLANT.
