Kerala High Court
Nubla vs Nubla on 6 January, 2021
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.539 OF 2020
AGAINST THE ORDER IN E.A. NOS.357 OF 2019 & 130 OF 2020 IN E.P.
NO.3 OF 2019 IN O.P.NO.1750/2014 OF THE FAMILY COURT, THRISSUR
DATED 17.12.2020
PETITIONER/RESPONDENT:
NUBLA, AGED 31 YEARS
D/O.LATHEEF, KATTILPARAMBATH HOUSE,
PARAMBIL.P.O., CHERUVATTA,
KOZHIKODE, PIN-673012.
BY ADVS.
SRI.JOHN K.GEORGE
SMT.M.B.SHYNI
SRI.DEEPAK RAJ
SHRI.PRASANTH K.T.
RESPONDENT/PETITIONER:
SAHEER RAHMAN, AGED 42 YEARS
S/O.ABDUL RAHMAN, MANAMKURICHIVEETTIL,
PANAVALLY.P.O, CHERTHALA, ALAPPUZHA, PIN-688526.
R1 BY ADV. SRI.ABDUL JALEEL.A
R1 BY ADV. SMT.M.A.SULFIA
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
06.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No.539 OF 2020 2
JUDGMENT
Dated this the 6th day of January, 2021
K. Vinod Chandran, J.
The petitioner, who is the mother of a
minor child, challenge the order of the Family
Court, Thrissur in Execution Application No.130 of
2020 in E.P.No.3 of 2019 in O.P. No.1750 of 2014.
The Family Court directed the decree holder-
father, who is the respondent herein, to have
custody of the child from 10am on every second
Saturday till 5pm on the following Sunday and also
during the first half of Onam and Christmas
Holidays as also 10 days each in April and May
during the summer vacation. The petitioner impugns
the order on the ground that the father, who has
been granted custody, has perpetrated a sexual
offence on the minor child.
2. We have gone through the impugned order
at Ext.P3, which narrates the history of the
dispute, the allegation raised later and the
detailed reasoning of the Family Court after
interacting with the child. The decree was passed
as early as on 29.07.2017 in the O.P filed by the
father seeking custody of the minor son. The
decree granted custody as has been detailed
earlier from the order impugned. There were many
litigations between the parties before the Family
Court. The claim for maintenance raised by the
petitioner-wife was allowed, but her claims for
return of gold ornaments and divorce were
rejected. The husband's prayer for restitution of
conjugal rights was allowed and so was his
application for custody of child in the manner
stated earlier. The petitioner-wife was
recalcitrant in complying with the decree, which
forced the respondent-father to approach the
Family Court with an execution petition.
3. When the E.P. was filed alleging the
refusal of the wife to comply with the decree, the
Family Court had to go to the extent of directing
the Commissioner of Police to cause production of
the minor child. This order was challenged before
the High Court, in which this Court initially
granted a stay and later directed the Family Court
to pass a speaking order considering the objection
of the petitioner and after interacting with the
child in the absence of both parents. The specific
contention taken up before the High Court was also
the allegation of sexual harassment.
4. The Family Court, in compliance of the
directions issued by this Court, carried out an
enquiry. The minor child was summoned to the Court
and interaction was carried out in the absence of
the parents. The learned Family Court Judge
records that the child answered every question in
a prudent manner and responded properly to the
queries regarding his School atmosphere and
friends. It is recorded that even without any
prompting on that aspect, the child volunteered to
speak about the sexual harassment allegedly
perpetrated on him. He narrated the incident as
reported before the Police, which the Family Court
Judge perceived to be by reason of tutoring. The
Family Court records that the minor child's
anxiety to come out with the incident itself shows
that the allegation of tutoring raised by the
respondent-father should be believed. At that
stage, the FIR was registered and hence the
execution application was closed.
5. In the present instance, the Family
Court noticed that final report has been filed by
the Investigating Officer referring the crime. It
is also seen that the Family Court from the final
report finds the Investigating Officer having
questioned 29 persons to come to the conclusion
that the offence alleged is a false and fabricated
one. The Investigating Officer is also found to
have narrated an incident in which the petitioner-
wife's men had assaulted the decreeholder-
respondent in the year 2018.
6. The learned Judge relied on Suhara and
Others v. Mohammed Jaleel 2019 (2) KHC 596 to find
that even when there is registration of a crime, it
shall not be reckoned as a ground to reject the
claim of custody by the parent, unless there are
sufficient materials to hold that the allegation of
sexual abuse is well-founded. We deem it apposite
to extract the following paragraph of the cited
decision:
"28. In our opinion, mere registration of
a crime under the provisions of the POCSO Act
against the parent of the ward is no
assurance to a Family Court that allegation
of sexual abuse made against him is nothing
but true. The allegation made against the
biological father could be true in rare
cases, but could be wholly false also. The
Family Court, before which such registration
of crime is proved must necessarily apply its
mind and endeavour to find out the true
circumstances which activised the
registration rather than being allured by the
mere fact of registration. Unless a very
cautious approach is adopted by the Family
Court to ensure that information on which
crime was registered is not frivolous and
vexatious, many a innocent parent fighting
for custody of his own ward would be victim
of false implication of crimes under the
POCSO Act. There is a growing tendency in the
recent years to foist false crimes against
the biological father alleging sexual abuse
of own child misusing the provisions of the
POCSO Act when serious fight for custody of
ward is pending resolution before the Family
Courts. The Family Courts to whose notice
registration of crime under the POCSO Act is
brought owe an onerous responsibility to
ensure that the registration of crime against
the parent is not a ruse for defeating his
legitimate claim for custody of the ward. The
Family Courts ought to examine the outcome of
investigation of the crime placed before the
court and also take into consideration all
relevant facts and circumstances which would
help the Judge form a prima facie opinion as
to whether the allegation of sexual abuse of
the ward is baseless or not. Each case
requires to be approached and evaluated on
its own facts and we realise that no hard and
fast approach could be laid in this respect
at all. We do not mean to say that Family
Courts should disregard the materials
collected by the investigating agency in the
crime and hold a total independent enquiry in
order to get at the truth or veracity of the
allegation. We make it clear that unless
there are reliable materials capable enough
to convince the allegation of sexual abuse to
be well founded, mere registration of crime
shall not be reckoned as a ground for
rejecting the claim of the parent for custody
of the child."
7. We are convinced that the Family Court
has discharged its onerous responsibility in a
commendable manner in the above case. The learned
Counsel for the petitioner submitted that in fact
the petitioner has filed a protest complaint, which
is pending before the jurisdictional Court.
However, that alone does not persuade us to find
that the allegation of sexual abuse is well founded
especially when the investigating agency has
referred the case as a false one.
8. We notice that the petitioner has
already frustrated the order of interim custody of
the child during the Christmas vacations. The order
impugned was passed on 17.12.2020 and we see from
the endorsement that a carbon copy was issued on
18.12.2020. The OP has been filed before this Court
on 24.12.2020, when the vacation of this Court
commenced.
We find absolutely no reason to interfere
with the very detailed consideration made by the
Family Court. We reject the OP in limine.
Sd/-
K. VINOD CHANDRAN, Judge.
Sd/-
M.R. ANITHA, Judge.
sp/06/01/2021
//True Copy//
P.A. To Judge
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORDER PASSED BY THE
FAMILY COURT,THRISSUR DATED 29/7/2017
IN O.P.1750/2014
EXHIBIT P2 A TRUE COPY OF THE FIR IN CRIME
NO.265/2019 OF CHEVAYUR POLICE STATION.
EXHIBIT P3 TRUE COPY OF THE COMMON ORDER PASSED BY
THE FAMILY COURT,THRISSUR IN
E.A.NO.357/2019 AND EA 130/2020 IN EP
3/2019 IN OP 1750/2014 DATED 17/12/2020.
