Kerala High Court
Shakeer vs Shakeela on 13 September, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 13TH DAY OF SEPTEMBER 2023/22ND BHADRA, 1945
MAT.APPEAL NO. 98 OF 2014
AGAINST THE JUDGMENT DATED 31.12.2013 IN O.P.NO.446 OF 2011
OF FAMILY COURT, MALAPPURAM
APPELLANT/PETITIONER:
SHAKEER, S/O.M.K.MUHAMMADALI, KARUVALIL HOUSE,
OLAVATTOOR (PO), PIN 673638, PANACHIKA PALLIYALIL,
ERANAD TALUK, MALAPPURAM DISTRICT.
BY ADVS.SRI.JAMSHEED HAFIZ
SRI.G.SREEKUMAR CHELUR
RESPONDENT/RESPONDENT:
SHAKEELA M.V., D/O.THITHEERU UMMA, SHAKKEELA MANZIL,
MADAMBATH VALAPPIL HOUSE, VALIYAKUNNU (PO), PIN
676552, POOKKATTIRI ROAD, VALANCHERY, MALAPPURAM
DISTRICT.
BY ADVS.SMT.K.P.AMBIKA
SRI.P.K.IBRAHIM
SRI.G.KIRAN
SMT.A.A.SHIBI
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
Mat.Appeal No.98 of 2014
JUDGMENT
Anil K. Narendran, J.
The appellant filed O.P.No.446 of 2011 before the Family
Court, Malappuram invoking the provisions under the Guardian
and Wards Act, 1890 against the respondent herein-mother for
getting permanent custody of the minor children, namely, Rena
aged 10 years and Ridha aged 7 years. In the said original
petition, the respondent-mother entered appearance and filed
counter opposing the reliefs sought for.
2. Before the Family Court, PWs.1 to 3 were examined
and Exts.A1 to A9 were marked on the side of the appellant. On
the side of the respondent, RWs.1 to 4 were examined and
Exts.B1 to B8(e) were marked. The document marked as Ext.X1
is a copy of the extract of register of petition.
3. After considering the pleadings and evidence on
record, the Family Court allowed the original petition in part by
directing the petitioner-father to handover the permanent
custody of the children to the respondent-mother. The
petitioner-father was allowed to have visitation right over the
children before the Family Court, Malappuram, once in every
month, i.e., the second Saturday of every month from 9.00 a.m
to 4.00 p.m.
Mat.Appeal No.98 of 2014
4. Feeling aggrieved, the appellant is before this Court in
this appeal invoking the provisions under Section 19(1) of the
Family Courts Act, 1984.
5. On 06.02.2014, when this appeal came up for
admission, this Court issued notice by speed post to the
respondent.
6. In this appeal, this Court passed various orders
regarding the interim custody/visitation right of the minor
children.
7. Heard the learned counsel for the appellant-father and
the learned counsel for the respondent-mother.
8. The learned counsel for the appellant would contend
that the court below went wrong in declining permanent custody
of the minor children to the appellant. The reasoning of the court
below in the impugned judgment is legally unsustainable, which
warrants interference in this appeal.
9. On the other hand, the learned counsel for the
respondent would contend that after considering the pleadings
and evidence on record, the court below rightly held that
permanent custody of the minor children, who were then aged
10 years and 7 years respectively, should be with the
Mat.Appeal No.98 of 2014
respondent-mother and the appellant-father was granted
visitation right. The submission of the learned counsel is that
even the visitation right granted by the Family Court was not
properly availed by the respondent-father.
10. The reasoning of the Family Court in paragraph 11
and also in the last paragraph of the impugned judgment dated
31.12.2013 reads thus;
"11. Admittedly, the minor children are about 10 years and
7 years old. They are appeared to be quite intelligent. The
respondent has not remarried so far. Even if there is any
drawback to the respondent, she being the mother of the
children, is the person who could give more care and
attention to the minor girl children rather than the
petitioner/father. More than the parties of the case I am
concerned in the welfare of the minor children and
undisputedly the children need the love and affection of both
the father and mother. The respondent being the father is
certainly entitled to see the children occasionally. So he is
entitled to have visitation right over the children.
Considering all these I am inclined to allow the prayer of the
OP in part. This point is found accordingly.
In the result, the petition is allowed in part. I hereby direct
to handover the permanent custody of the children to the
respondent/mother. The petitioner is allowed to have
visitation right over the children before the Family Court,
Malappuram once in every month, i.e., 2nd Saturday of
every month from 9 a.m. to 4 p.m."
11. In Yashita Sahu v. State of Rajasthan [(2020) 3
Mat.Appeal No.98 of 2014
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 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.
12. In Yashita Sahu (supra) the Apex Court noticed that
a child, especially a child of tender years requires the love,
affection, company, and protection of both parents. This is not
only the requirement of the child but is his/her basic human
right. Just because the parents are at war with each other, does
not mean that the child should be denied the care, affection, love
Mat.Appeal No.98 of 2014
or protection of any one of the two parents. A child is not an
inanimate object which can be tossed from one parent to the
other. Every separation and every re-union may have a
traumatic and psychosomatic impact on the child. Therefore, it is
to be ensured that the court weighs each and every
circumstance very carefully before deciding how and in what
manner the custody of the child should be shared between both
parents. Even if the custody is given to one parent the other
parent must have sufficient visitation rights to ensure that the
child keeps in touch with the other parent and does not lose
social, physical and psychological contact with any one of the
two parents. It is only in extreme circumstances that one parent
should be denied contact with the child. Reasons must be
assigned if one parent is to be denied any visitation rights or
contact with the child. Courts dealing with custody matters must
while deciding issues of custody clearly define the nature,
manner and specifics of the visitation rights. A child has a human
right to have the love and affection of both parents and courts
must pass orders ensuring that the child is not totally deprived of
the love, affection and company of one of her/his parents.
13. In the instant case, the judgment and decree in
Mat.Appeal No.98 of 2014
O.P.No.446 of 2011 is one dated 31.12.2013, whereby the
respondent-mother was granted permanent custody of the minor
children, namely Rena aged 10 years and Ridha aged 7 years.
The appellant-father has been granted visitation right to see the
children occasionally, i.e., once in every month on second
Saturdays from 9.00 a.m. to 4.00 p.m. in the premises of the
Family Court, Malappuram. Rena, who attained majority, is now
aged 20 years. Ridha, who is still a minor, has attained the age
of 17 years. All along both of them were with the respondent-
mother. The specific stand taken by the learned counsel for the
respondent-mother is that the appellant-father has not even
availed the visitation right granted in the impugned judgment of
the Family Court.
14. Having considered the pleadings and materials on
record and also the submissions made at the Bar, we find
absolutely no reason to interfere with the impugned judgment
and decree dated 31.12.2013 of the Family Court.
In the result, this appeal fails and the same is accordingly
dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
VIJU ABRAHAM, JUDGE
AV/18/9
