Kerala High Court
Dr Zahir Ummer vs Dr Shameena Syed Muhammed on 6 February, 2024
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
OP (FC) NO.47 OF 2024
GOP 1967/2023 OF FAMILY COURT, KUNNAMKULAM
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PETITIONER/RESPONDENT :-
DR ZAHIR UMMER, AGED 42 YEARS
S/O.UMMER VAKATHAKAYIL, VAKATHAYIL RESIDENCE,
KANNOTH ROAD, P.O.VENKIDANGU, VENKIDANGU VILLAGE,
CHAVAKKAD TALUK, THRISSUR, PIN - 680 510
BY ADV PREMCHAND M.
RESPONDENT/PETITIONER :-
DR SHAMEENA SYED MUHAMMED, AGED 38 YEARS
D/O. DR SYED MUHAMMED, SUFASH, BENDICHAL, THEKKIL,
KASARGOD - 673 541 NOW RESIDING AT FLAT NO.83,
QUADRANT COURT, JUBILEE SQUARE, READING,
RG12GU, UK REPRESENTED BY THE POWER OF ATTORNEY
HOLDER KANDMBATH KARINTHOLI JUBAIRI, AGED 71 YEARS,
D/O. LATE SYED MUHAMMED, RESIDING AT SUFASH,
BENDICHAL, THEKKIL, KASARGOD, PIN - 673 541
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
22.1.2024, THE COURT ON 6.2.2024 DELIVERED THE FOLLOWING:
OP(FC) NO.47 OF 2024
-: 2 :-
ANU SIVARAMAN, J. & C. PRATHEEP KUMAR, J.
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O.P.(FC) No.47 of 2024
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Dated this the 6th day of February, 2024
JUDGMENT
Anu Sivaraman, J.
The petitioner and the respondent are husband and wife
respectively. Their marriage was solemnized on 05.05.2008 as per
the Islamic rites and a minor child was born on 19.11.2010. Both
the parties are Doctors by profession.
2. The petitioner is the respondent in GOP No.1967/2023 of
the Family Court, Kunnamkulam which was filed by the respondent
herein praying to declare her as the natural guardian of the minor
child and to grant permanent custody. In the family court, the
respondent submitted that the petitioner was neither interested in
his profession nor allowed the respondent to continue her practice
or pursue higher studies. The respondent was subjected to cruelty
and the petitioner demanded money from the respondent to start
his own business. It is submitted that when the respondent
received admission for post graduation in UK, she left for UK
leaving the minor child with the petitioner. Thereafter, she took up
a job in Bangalore. The respondent filed a petition for dissolution of
OP(FC) NO.47 OF 2024
marriage as O.P. No.797/2020 and obtained an ex parte decree.
She also filed O.P. No.1215/2022 for guardianship and permanent
custody of their minor daughter. The ex parte decree was set aside
and she withdrew both the cases. Later, the respondent dissolved
the marriage with the petitioner by sending a notice of declaration
of Khula dated 29.03.2023 and later filed GOP No.1967/2023
stating that she is the better person to have custody of the minor
child. The respondent also filed an interlocutory application, I.A.
No.2/2023 praying to permit her to take the minor child along with
her to UK. The petitioner objected to this stating that the
respondent has abandoned the child in the past and will not be able
to provide maternal care and protection. However, without
considering the objections, the I.A. was allowed permitting the
respondent to take the child to UK. Hence, this OP(FC).
3. We have heard the learned counsel for the petitioner in
this OP(FC) and have considered the contentions advanced. The
main contention raised is that the OP for custody filed by the
petitioner herein, the father of the child is also pending and that the
interim custody granted to the mother without considering the
father's objections is unwarranted. We notice that the Family Court
has considered the contentions raised by the petitioner. It is
considering the fact that the child is a girl aged 13 years that the
OP(FC) NO.47 OF 2024
interim custody has been granted to the mother and she was
permitted to take the child abroad. The father has been permitted
to talk to the child on video call every day. Stringent conditions
have also been imposed for permitting the mother to take the child
with her.
4. The learned counsel for the petitioner contends that the
conditions may be violated by the mother. However, we are of the
opinion that such apprehension cannot be a ground to deny interim
custody to the mother. Taking note of the gender and age of the
child and the strict conditions imposed by the order, we are not
inclined to interfere in the order of interim custody.
The OP(FC) fails and the same is, accordingly, dismissed.
Sd/-
ANU SIVARAMAN
JUDGE
Sd/-
C. PRATHEEP KUMAR
JUDGE
Jvt/1.2.2024
OP(FC) NO.47 OF 2024
APPENDIX OF OP (FC) 47/2024
PETITIONER EXHIBITS :-
Exhibit P1 TRUE COPY OF THE O.P.NO.1967/2023 FILED BY THE
RESPONDENT BEFORE THE FAMILY COURT KUNNAMKULAM
DATED 15/06/2023
Exhibit P2 TRUE COPY OF THE PETITION FILED BY THE
RESPONDENT BEFORE THE FAMILY COURT KUNNAMKULAM
AND NUMBERED AS I.A.NO.2/2023 IN
G.O.P.NO.1967/2023 DATED 19/09/2023
Exhibit P3 TRUE COPY OF THE OBJECTIONS FILED BY THE
PETITIONER O.P.NO.1967/2023 DATED 12/12/2023
Exhibit P4 TRUE COPY OF THE O.P NO.1165/2023 FILED BY THE
PETITIONER BEFORE THE FAMILY COURT KUNNAMKULAM
DATED 28/09/2022
Exhibit P5 TRUE COPY OF THE ORDER DATED 01/01/2024 IN I.A.
2/2023 IN GOP NO. 1967/2023 OF THE FAMILY COURT
KUNNAMKULAM
