Dr.Shamna Muhammed vs Dr.Jaseer Aboobacker
2021 Latest Caselaw 6547 Ker

OP (FC).No.141 OF 2021

                            1

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                            &

            THE HONOURABLE MR.JUSTICE C.S.DIAS

WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA,
                          1942

                  OP (FC).No.141 OF 2021

AGAINST THE ORDER IN I.A. 4/2020 IN OP 222/2018 OF FAMILY
                      COURT, KANNUR


PETITIONERS:

     1     DR.SHAMNA MUHAMMED
           AGED 36 YEARS
           D/O.MUHAMMED, RESIDING AT SAINAS, THANA,
           MUZHATHADAM, KANNUR TALUK, POST KANNUR-2,
           KANNUR DISTRICT.

     2     SHAKKEELA MUHAMMED,
           AGED 52 YEARS
           W/O.MUHAMMED, RESIDING AT SAINAS, THANA,
           MUZHATHADAM, KANNUR TALUK, POST KANNUR-2,
           KANNUR DISTRICT.

           BY ADVS.
           SRI.M.SASINDRAN
           SRI.SATHEESHAN ALAKKADAN

RESPONDENT/S:

           DR.JASEER ABOOBACKER
           AGED 38 YEARS
           S/O.MAHAMMOOD, RESIDING AT DARUL NAJATH HOUSE,
           MUTTAM, VENGARA POST, KANNUR DISTRICT-670305.


     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP (FC).No.141 OF 2021

                             2

                         JUDGMENT

Dated this the 24th day of February 2021

C.S.Dias, J.

This original petition is filed challenging the

order dated 17.12.2020 in I.A 4/2020 in O.P.222/2018

(Ext.P6) passed by the Family Court, Kannur.

2. The respondent in this original petition has

filed O.P. 222/2018 (Ext.P1) seeking the permanent

custody of the minor child 'Aman Mahmood', born in

the wedlock between the respondent and the 1st

petitioner. The 2nd petitioner is the mother of the 1 st

petitioner. The petitioners had filed Ext.P2 written

objection to Ext.P1. Even though the Family Court had

granted the visitation rights to the respondent,

subsequently by Ext.P4 order the said right was

cancelled due to the registration of Ext.P3 F.I.R

against the respondent.

3. Pursuant to Ext.P3 F.I.R, the statement of

the child (the victim) was recorded by the Judicial OP (FC).No.141 OF 2021

First Class Magistrate Court -I, Kannur under Section

164 of the Code of Criminal Procedure, for an offence

punishable under the Protection of Children from

Sexual Offences Act. In the above circumstances, the

petitioners had filed I.A No.4/2018 (Ext.P5) to

examine the learned Magistrate who recorded the

statement of the victim. Albeit the respondent not

filing any written objection to Ext.P5, the Family court

by the impugned Ext.P6 order dismissed the

application.

4. Aggrieved by Ext.P6 order, the petitioners

are before this Court.

5. Heard the learned counsel appearing for the

petitioners.

6. Ext.P1 is filed seeking the custody of the

child. The petitioners have a case that the respondent

is disqualified to have the custody of the child as he

is allegedly accused of abusing the child. According

to them, the Kannur Police have registered Ext.P3- OP (FC).No.141 OF 2021

F.I.R for offences punishable under the Protection of

Children from Sexual Offences Act. As the child's

statement was recorded under Section 164 of Cr.P.C

by the learned Magistrate, in order to prove the

authenticity of the Section 164 statement, the

learned Magistrate has to be examined.

7. The Family Court after considering the

presumption under Section 80 of the Indian Evidence

Act, dismissed the application by Ext.P6 order.

8. Section 80 of the Indian Evidence Act reads

as follows:

"80. Presumption as to documents

produced as record of evidence:- Whenever any

document is produced before any Court purporting

to be a record or memorandum of the evidence, or

or any part of the evidence, given by a witness in a

judicial proceeding or before any officer authorized

by law to take such evidence, or to be a statement

or confession by any prisoner or accused person,

taken in accordance with law, and purporting to be OP (FC).No.141 OF 2021

signed by any Judge or Magistrate, or by any such

officer as aforesaid, the Court shall presume-

that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken".

9. Section 80 of the Indian Evidence Act

extracted above, clearly postulates that any

memorandum of evidence given by a witness before

any officer authorised by law shall be presumed to be

genuine.

10. In view of the above irrebutable presumption

of law, burden is on the respondent to prove that the

statement recorded by the Magistrate is vitiated and

was not recorded as enjoined in law. Moreover, the

petitioners themselves place reliance on Section 164

statement. Likewise, Section 164 statement recorded

by the learned Magistrate can only be used as a

piece of material to disqualify the respondent from OP (FC).No.141 OF 2021

getting the custody of the child.

11. We are conscious of the fact that the

criminal proceeding is sub-judice. Therefore, no

roving enquiry can be permitted to prove or discredit

the recording of Section 164 statement, in an

ancillary proceeding relating to the custody of the

child because it may prejudice the prosecution as well

as the defence case. Furthermore, the whole exercise

is unwarranted in view of the presumption of law.

The learned Judge of the Family Court has rightly

dismissed Ext.P5 application.

We do not find any illegality or error of

jurisdiction committed by the Family Court in passing

Ext.P6 order, warranting interference by this Court in

exercise of its supervisory jurisdiction as enshrined

under Article 227 of the Constitution of India. OP (FC).No.141 OF 2021

The original petition is devoid of any merits and

is liable to be dismissed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

                                      C.S.DIAS
ma/24.2.2021   /True copy              JUDGE
 OP (FC).No.141 OF 2021




                         APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1         A TRUE COPY OF THE O.P.NO.222 OF 2018

ON THE FILES OF FAMILY COURT, KANNUR.

EXHIBIT P2 A TRUE COPY OF THE COUNTER IN O.P.NO.222 OF 2018 FILED BY THE PETITIONER HEREIN.

EXHIBIT P3 A TRUE COPY OF THE FIR IN CRIME NO.705/2018 OF KANNUR TOWN POLICE STATION.

EXHIBIT P4 A TRUE COPY OF THE ORDER IN I.A.NO.976 OF 2018 IN O.P.NO.222/2018 ON THE FILES OF FAMILY COURT, KANNUR.

EXHIBIT P5 A TRUE COPY OF THE I.A.NO.4/2018 IN O.P.NO.222 OF 2018 ALONG WITH THE ADDITIONAL WITNESS LIST.

EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 17.12.2020 IN I.A.NO.4/2020 IN O.P.NO.222 OF 2018 ON THE FILES OF FAMILY COURT, KANNUR.