Abida Abdulla vs Abdul Fajaz.K
2022 Latest Caselaw 10311 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                  &
           THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                    O.P.(FC) NO. 399 OF 2022
AGAINST THE ORDER DATED 27.04.2022 IN I.A.NO.2 OF 2022 IN
    O.P.NO.103 OF 2022 OF THE FAMILY COURT, KASARAGOD
PETITIONER:

            ABIDA ABDULLA,
            AGED 33 YEARS, DAUGHTER OF KUNNABDULLA THEKKE
            PURAYIL, "ASHIYANA", NEAR MRVHS SCHOOL,
            PADNE (PO), KASARAGOD (DIST)., PIN - 671312.
            BY ADVS.
            V.S.MANSOOR
            AKHIL BINOY


RESPONDENT:

            ABDUL FAJAZ K.,
            AGED 38 YEARS, SON OF ABDUL JABBAR,
            "FAJ MAHAL", CHECK POST ROAD, KANNOTHUMCHAL,
            THANE (PO), KANNUR (DIST), PIN - 670012.
            BY ADVS.
            R.S.KALKURA
            M.S.KALESH
            HARISH GOPINATH
            P.I.NAJUMAL HUSSAIN

     THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL
HEARING     ON   07.10.2022,    THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
                                   2
O.P.(FC) No.399 of 2022


                            JUDGMENT

Ajithkumar, J.

This Original Petition was filed by the respondent in

O.P.No.108 of 2022 on the file of the Family Court, Kasargod,

which he had filed for getting custody of his minor son, Fadi

Fajaz, aged about 7 years. The petitioner filed I.A. No. 2 of

2022 in that O.P for a direction directing the respondent to

produce the passport of the minor son and to grant the

petitioner permission to take the minor abroad. The Family

Court dismissed that I.A. as per the order dated 27.04.2022.

Aggrieved by that order the petitioner has filed this original

petition under Article 227 of the Constitution of India

2. On 11.07.2022, notice was directed to be served

on the respondent. Interim stay was granted for a period of

two weeks. The interim stay was extended from time to time.

On 5.8.2022, this Court allowed the father-respondent to

have interim custody of the child till 07.08.2022. On

24.8.2022, it was clarified that the order of stay would not

stand in the way of the Family Court, Kasaragod releasing the

passport to the petitioner-mother for the purpose of

O.P.(FC) No.399 of 2022

processing the visa. She was however restrained from taking

the minor abroad without permission from this Court. The

petitioner was further directed to return the passport to the

Family Court, Kasaragod within ten days.

3. The respondent has filed a counter-affidavit

producing therewith Exts.R1(a) to R1(g). He also has filed an

additional counter-affidavit.

4. The respondent filed I.A.No.2 of 2022 producing

therewith two more documents with a prayer to receive the

same as Exts.P9 and P10. The respondent has filed a counter

affidavit to that I.A.

5. Heard the learned Counsel appearing for the

petitioner and the learned Counsel appearing for the

respondent.

6. The marriage between the petitioner and the

respondent was solemnized on 28.12.2014. The child, Fadi

Fajaz, was born to them on 16.11.2015. They were residing in

Dubai. Their relationship strained and now the petitioner along

with the child is residing at her parental home at Kasaragod.

O.P.(FC) No.399 of 2022

O.P.(FC) No.108 of 2022 was filed by the respondent seeking

custody of the child. A copy of the original petition is Ext.P1.

This petition was originally filed before the Family Court,

Kannur. As per the order of this Court the petition was

transferred to the Family Court, Kasaragod. The petitioner had

filed I.A.No.1 of 2021 seeking a direction to the respondent to

handover to her the passport of herself and the minor.

Although the passport of the petitioner was directed to be

returned, prayer for return of the passport of the child was

disallowed. Later, I.A.No.2 of 2022 was filed before the Family

Court, Kasaragod seeking return of the passport of the child

and permission to take the child abroad. It was contended

that since the petitioner got an offer of employment in Abu

Dhabi and in that changed circumstances, she along with her

minor has to leave for Abu Dhabi. The prayer was opposed by

the respondent saying that the intention of the petitioner is

something else and that the petition is barred by res judicata.

7. The Family Court, Kasargod accepted the

contention of the respondent and dismissed I.A.No.2 of 2022

O.P.(FC) No.399 of 2022

as per Ext.P6 order. The learned Counsel appearing for the

petitioner would submit that the Family Court did not adhere

to the settled principle of law that an order of interim custody

of a child is temporary in nature and the court is competent to

modify the order at any time, if the circumstances require to

do so. The learned counsel placed reliance in this regard on

the decision in Rosy Jacob v. Jacob A.Chakramakkal

[(1973) 1 SCC 840]. The learned counsel invited our

attention to Ext.P7, which is an employment offer letter issued

to the petitioner, in order to contend that when such an

employment opportunity is available, she has to accept it and

it is only legitimate for her to take the child, who is nearing

only 7 years, along with her. The learned counsel would also

contend that considering the nature of employment she can

manage the affairs of the child and in the circumstances the

Family Court ought to have allowed I.A.No.2 of 2022.

8. The learned counsel appearing for the respondent,

on the other hand, would contend that a similar prayer was

disallowed earlier by the Family Court as per Ext.P3 order and

O.P.(FC) No.399 of 2022

as such the impugned order cannot be found fault with. It is

pointed out that in the absence of any one else along with the

petitioner in Abu Dhabi, it would not be possible for her taking

care of the affairs of the child during day time and hence no

permission can be granted to the petitioner to take the child

abroad.

9. In Barkat Ali and another v. Badri Narain (D)

by LRs. [(2008) 4 SCC 615] was relied on by the Family

Court to hold that I.A.No.2 of 2022 is not maintainable. In

that decision, the Apex Court held that the principles of res

judicata apply not only in respect of separate proceedings but

general principles also apply at the subsequent stage of the

same proceedings and a Court is precluded to go into the

same question again which has been decided or deemed to

have been decided by it at an early stage. This general

principle cannot have universal application while deciding

questions regarding the custody of minor children.

10. Section 12 of the Guardians and Wards Act, 1890

provides that a court may make an order for the temporary

O.P.(FC) No.399 of 2022

custody and protection of a minor as it thinks proper. If the

Court has power under Section 12 of the Act for grant of

temporary custody during the pendency of the proceedings it

will also have jurisdiction to modify that order if the

circumstances so demand during the pendency of the

proceedings. A three-Judge Bench of the Apex Court in Rosy

Jacob (supra) held that all orders relating to the custody of

minor wards from their very nature must be considered to be

temporary orders made in the existing circumstances. With

the changed conditions and circumstances, including the

passage of time, the Court is entitled to vary such orders if

such variation is considered to be in the interest of the welfare

of the wards. It was also explained that orders relating to

custody of wards even when based on consent are liable to be

varied by the Court, if the welfare of the wards demands

variation. In that view of the matter the finding of the Family

Court that the present request of the petitioner to get the

passport of the child and permission to take the child abroad

is barred by res judicata is incorrect. The object behind that

O.P.(FC) No.399 of 2022

request of the petitioner is to get temporary custody of the

child while she goes abroad. Family Court should have decided

that question in the light of the changed circumstances that

the petitioner got an employment opportunity abroad.

11. The petitioner produced Ext.P7 to show that she

got a fresh offer for employment at Abu Dhabi. As held above,

the findings of the Family Court that the claim in I.A.No. 2 of

2022 is barred by the principles of res judicata is

unsustainable in law. And, the Family Court did not consider

on merits the question whether the request of the petitioner

for permissions to take the child abroad could be allowed in

the light of the changed circumstances. Hence, it is only

appropriate to relegate the matter to be decided by the Family

Court anew in the light of Ext.P7 and the law on the point.

12. As held by the Apex Court in Bikram Bharua v.

Salini Bhala [(2010) 4 SCC 409] the welfare of the child is

of paramount importance in matters relating to child custody

and the welfare of the child has a primacy even over statutory

provisions.

O.P.(FC) No.399 of 2022

13. In Sheoli Hati v. Somnath Das [(2019) 7 SCC

490] the Apex Court held that every child has the right to

proper health and education and it is the primary duty of the

parents to ensure that child gets proper education. The Courts

in exercise of parens patriae jurisdiction have to decide such

delicate question. It has to consider the welfare of the child as

of paramount importance taking into consideration other

aspects of the matter including the rights of parents also.

14. In Yashita Sahu v. State of Rajasthan [(2020) 3

SCC 67] the Apex Court held that law is well settled by a

catena of judgments that, while deciding matters of custody of a

child, primary and paramount consideration is the welfare of the

child. If the welfare of the child so demands then technical

objections cannot come in the way. However, while deciding the

welfare of the child it is not the view of one spouse alone which

has to be taken into consideration. The courts should decide the

issue of custody only on the basis of what is in the best interest

of the child. The child is the victim in custody battles. In this

fight of egos and increasing acrimonious battles and litigations

O.P.(FC) No.399 of 2022

between two spouses, more often than not, the parents who

otherwise love their child, present a picture as if the other

spouse is a villain and he or she alone is entitled to custody of

the child. The court must therefore be very wary of what is said

by each of the spouses.

15. We abjure from making any further observations as

the matter has to be decided afresh by the Family Court.

Accordingly, we set aside the impugned Order dated

27.04.2022. The Family Court, Kasargod will decide I.A.No.2

of 2022 in O.P.No.108 of 2022 afresh keeping in mind the

change in the circumstances, especially in the light of Ext. P7,

and the law on the point. The Family Court shall take up

I.A.No.2 of 2022 for consideration on 17.10.2022, on which

date both sides will appear before that Court, and dispose of it

within two weeks from that date.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

O.P.(FC) No.399 of 2022

APPENDIX OF OP (FC) 399/2022

PETITIONER EXHIBITS EXHIBIT P1 TRUE PHOTOCOPY OF O.P NO:1190/2019 OF FAMILY COURT, KANNUR (NOW PENDING AS O.P NO: 108/2022 ON THE FILES OF FAMILY COURT, KASARAGOD) EXHIBIT P2 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT IN O.P NO:1190/2019 OF FAMILY COURT, KANNUR (NOW PENDING AS O.P NO: 108/2022 ON THE FILES OF FAMILY COURT, KASARAGOD) EXHIBIT P3 TRUE PHOTOCOPY OF THE ORDER DATED 12/02/2021 IN I.A NO: 1/2021 IN OP 1190/2019 OF FAMILY COURT, KANNUR EXHIBIT P4 TRUE PHOTOCOPY OF I.A NO: 2/2022 IN O.P NO: 108/2022 OF FAMILY COURT, KASARAGOD FILED BY THE PETITIONER HEREIN DTD. 3/03/2022 EXHIBIT P5 TRUE PHOTOCOPY OF THE COUNTER FILED BY THE RESPONDENT HEREIN DTD. 17/05/2022 EXHIBIT P6 CERTIFIED COPY OF THE ORDER DATED 27/04/2022 IN I.A NO: 2/2022 IN O.P NO: 108/2022 OF FAMILY COURT, KASARAGOD EXHIBIT P7 TRUE PHOTO COPY OF THE JOB OFFER LETTER DTD. 22/06/2022 ISSUED TO THE PETITIONER EXHIBIT P8 TRUE PHOTOCOPY OF THE MEDICAL REPORT OF THE PETITIONER'S FATHER EXHIBIT P9 PHOTOCOPY OF THE VISA OF FADI FAJAZ TO UAE

O.P.(FC) No.399 of 2022

EXHIBIT P10 PHOTOCOPY OF THE VISA OF ABIDA ABDULLA TO UAE.

RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE PETITION SUBMITTED BY THE RESPONDENT AS O.P. 1190 OF 2019 ON THE FILE OF FAMILY COURT, KANNUR TRANSFERRED AND RE-NUMBERED AS O.P.

108 OF 2022 ON THE FILE OF THE FAMILY COURT, KASARGOD EXHIBIT R1(B) TRUE COPY OF THE I.A. 1564 OF 2019 DATED 31.10.2019 FOR INTERIM CUSTODY OF THE CHILD FILED BY THE RESPONDENT IN O.P. 1190 OF 2019 ON THE FILE OF THE FAMILY COURT, KANNUR EXHIBIT R1(C) TRUE COPY OF THE PSYCHOLOGIST REPORT SUBMITTED BY DR. E.D. JOSEPH DATED 14.11.2019 IN RESPECT OF THE MINOR CHILD OF THE PETITIONER EXHIBIT R1(D) TRUE COPY OF THE VOICE NOTE BY ISIS APPEARING IN THE NEWS MINUTE.COM MAGAZINE EXHIBIT R1(E) TRUE COPY OF THE ARTICLE DATED 27.02.2018 APPEARING IN THE DECCAN CHRONICLE EXHIBIT R1(F) TRUE COPY OF THE ARTICLE APPEARING IN REDIFF NEWS UNDER THE HEAD "ISIS KERALA CONNECTION" BY ONE STANLY JOHNY DATED 20.04.2018 EXHIBIT R1(G) TRUE COPY OF THE ORDER DATED 12.02.2021 IA NO. 1 OF 2021 IN OP NO.1190/2019 ON THE FILE OF THE FAMILY COURT, KANNUR EXHIBIT R1(H) TRUE COPY OF THE TREATMENT RECORDS

O.P.(FC) No.399 of 2022

PERTAINING TO THE PETITIONER WHICH WAS RENDERED DUBAI COMMUNITY HEALTH CENTRE, DUBAI FROM 03.02.2019 TO 10.04.2019 EXHIBIT R1(I) TRUE COPY OF THE PICTURE SENT BY THE CHILD THROUGH WHATSAPP AT THE INSTANCE OF THE PETITIONER