Op(G) 2446/2019 Dated 02-02-2020 ... vs By Adv. Sri.Dilip J. Akkara
2021 Latest Caselaw 134 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                                  &

                THE HONOURABLE MRS. JUSTICE M.R.ANITHA

     WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942

                        OP (FC).No.285 OF 2020

     OP(G) 2446/2019 DATED 02-02-2020 OF FAMILY COURT,THRISSUR


PETITIONER/

              NIMMI
              AGED 31 YEARS
              D/O. BALAKRISHNAN, ATTUPURATH VEETTIL, PERINJANAM
              VILLAGE, DESOM, KODUNGALLOOR TALUK AND W/O.
              THATTARUVEETTIL LATE RAJESH, KADANGODE VILLAGE, DESOM,
              KUNNAMKULAM TALUK.

              BY ADV. SRI.DILIP J. AKKARA

RESPONDENT

              RAJAN
              AGED 63 YEARS
              S/O. GOVINDAN, TATTARUVEETTIL, KADANGODE VILLAGE,
              DESOM, KUNNAMKULAM TALUK, THRISSUR-680 503.

              R1 BY ADV. SRI.N.U.HARIKRISHNA

     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 06.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(FC).285/2020
                                             2

                                    JUDGMENT

Dated : 6th January, 2021

M.R.Anitha, J.

1.This Original Petition has been filed against the dismissal of I.A.6684/2019 in O.P.2446/2019 on the file of the Family Court, Thrissur. The petitioner had filed the above I.A seeking interim custody of her minor son Anandan Krishnaraj.

2.Notice was issued to the respondent. Heard both sides.

3.According to the learned counsel for the petitioner, the Guardian OP has been filed seeking for a permanent custody of the minor son in the capacity of the petitioner as the natural guardian. The petitioner's husband is no more and minor is in the custody of the respondent/father-in-law. It is also alleged that she was subjected to cruelty by her husband and hence she shifted the residence to a rented building and during that period, due to severe financial crisis, the husband committed suicide and crime No.1062/2019 was registered in connection with the death of the petitioner's OP(FC).285/2020

husband. Taking advantage of that condition of the petitioner, the respondent retained the elder child with him and ejected the petitioner and younger daughter from the matrimonial home. The minor son is now studying in the LP school. According to her, for safeguarding the welfare of the minor, custody has to be given to her.

4.The learned counsel for the respondent, on the other hand contended that while the petitioner was living with his son in the matrimonial home, she maintained an illicit relationship with one Shiyas. When the respondent was informed about the same, she left the elder child in the matrimonial home and shifted the residence to her paternal home with the younger child. Thereafter she filed a complaint before the Women cell and both parties appeared before the Women cell. The aforementioned Shiyaz also appeared and after counseling the petitioner expressed her willingness to lead a peaceful life with the respondent/son. Accordingly rented house was taken and they shifted the residence to that house. But the petitioner continued her illicit relationship with the said Shiyaz and out of mental agony the respondent/son, the husband of the petitioner committed suicide, after preparing a suicide note. Now the minor is OP(FC).285/2020

studying in LP school. The daughter of the respondent is a widow and she is also residing with the respondent, along with her child. The respondent could provide a comfortable life to the minor. It is not in the welfare of the minor to give the custody to the petitioner.

5.The learned counsel for the respondent contended that the petitioner had filed a complaint against Shiyas and she also filed complaint requesting Shiyaz to destroy the photographs and voice message. But the learned Family Court has taken into account the suicide note, Ext.B2, of the deceased/husband of the petitioner wherein it has been written that the reason for committing suicide is illicit relationship of the petitioner. It is also stated that the younger child of the petitioner was born to Mr.Shiyas.

6.True that the petitioner had challenged all those documents. But the respondents could prima facie satisfy the illicit relationship of the petitioner with another person, which led to the matrimonial discord and ultimately resulted in the suicide of the father of the minor. The undisputed fact that the widowed daughter of the respondent is living with the respondent along with her child was further taken note of by the OP(FC).285/2020

learned Family Court Judge. So the Family Court was of the view that if the minor child is allowed to be given in custody of the petitioner it would adversely affect his emotional as well as personal development. So on going through the impugned order, we are of the view that the learned Family Court has considered each and every aspect which could be taken into account at the preliminary stage of granting interim custody of the minor to the petitioner. We do not find any justifiable reason to take a different view at this stage.

7.In the result, the Original Petition is devoid of any merit and hence dismissed.

Sd/-

K.VINOD CHANDRAN Judge

Sd/-

M.R.ANITHA Judge

Mrcs/7.1.

OP(FC).285/2020

APPENDIX EXHIBITS:

PHOTOCOPY OF OP(GUARDIAN) DATED 2.12.2019 EXHIBIT P1 BEFORE THE FAMILY COURT THRISSUR FILED BY PETITIONER.

EXHIBIT P2 PHOTOCOPY OF IA 6684/19 DATED 2.12.19 IN GOP 2446/19 FILED BY PETITIONER SEEKING INTERIM CUSTODY.

EXHIBIT P3 PHOTOCOPY OF COUNTER DATED 12.2.2020 FILED BY RESPONDENT IN EXTP-2 IA.

EXHIBIT P4 ORDER DATED 3.3.2020 OF THE FAMILY COURT IN IA 6684/19 IN OP 2446/19.