Kerala High Court
Abdul Asees vs Noorudheen on 3 October, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
2024:KER:73212
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
OP (FC) NO. 554 OF 2024
ORDER DATED 03.01.2024 IN IA 2/2023 IN GOP NO.2328
OF 2023, FAMILY COURT, KUNNAMKULAM
PETITIONERS/PETITIONERS:
1 ABDUL ASEES, AGED 65 YEARS
S/O MANGALATHARA AHAMMED,
KATTOOR VILLAGE & P.O,
PANIKKARMOOLA DESOM,
MUKUNDAPURAM TALUK,
THRISSUR DISTRICT, PIN - 680702.
2 RAMLA ABDUL ASEES, AGED 59 YEARS
W/O MANGALATHARA ABDUL AZEES,
KATTOOR VILLAGE & P.O,
PANIKKARMOOLA DESOM, MUKUNDAPURAM TALUK,
THRISSUR DISTRICT, PIN - 680702.
BY ADVS.
M.R.MINI
VINOD RAVINDRANATH
MEENA.A.
K.C.KIRAN
ANISH ANTONY ANATHAZHATH
THAREEQ ANVER K.
NIVEDHITHA PREM.V
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OP (FC) NO. 554 OF 2024
-2-
RESPONDENTS/RESPONDENTS:
1 NOORUDHEEN, AGED 59 YEARS
ARAVASSERY HOUSE, THALIKULAM DESOM,
VILLAGE & P.O, CHAVAKKAD TALUK,
THRISSUR DISTRICT, PIN - 680569.
2 NASEEMA, AGED 56 YEARS
W/O ARAVASSERY NOORUDHEEN,
THALIKULAM DESOM, VILLAGE & PO,
CHAVAKKAD TALUK, THRISSUR DISTRICT,
PIN - 680569.
3 NISHAD, AGED 38 YEARS
S/O UNNIKKANDATH MUHAMMED,
VADAKKUMURI P.O, CHEMMAPPILLY DESOM,
PERINGOTTUKARA VILLAGE, THRISSUR TALUK,
THRISSUR DISTRICT, PIN - 680565.
BY ADVS.
JITHIN BABU A
ARUN SAMUEL(K/940/2016)
ANOOD JALAL K.J.(K/000854/2024)
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 03.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP (FC) NO. 554 OF 2024
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JUDGMENT
Devan Ramachandran, J.
The petitioners - grandparents of two
minor children, are before us challenging Ext.P4
order, through which, the learned Family Court,
Kunnamkulam, declined to order their application
for interim custody of the said children,
pending decision in GOP No.2328/2023, filed by
the children's maternal grandparents.
2. Compendiously, the mother of the
children is alleged to have been killed by her
own husband; and that he is now in jail. The
children are continuing with the maternal
grandparents, and they filed the aforementioned
GOP seeking their permanent custody.
3. While so, on the allegation that
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the maternal grandparents are not taking care of
the children and that they are made to live
separately in two different houses, the
petitioners herein filed I.A.No.2/2023, seeking
their interim custody, which has now been
rejected by the learned Family Court. The
petitioners allege that the findings of the
learned Family Court are diverse from facts and
contrary to truth; and hence that it is liable
to be set aside.
4. Sri.Krishnanunni - learned Senior
Counsel, instructed by Smt.Mini M.R. - appearing
for the petitioners, submitted that, even going
by the facts noticed by the learned Family
Court, it ought not to have dismissed his
clients' application because, even if interim
custody was not granted, their right of
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visitation ought to have been protected. He
pointed out that the only reason stated by the
respondents, in not allowing even such privilege
in favour of his clients, is that, if it were
done, the father of the children would obtain
exoneration in the criminal case against him. He
asserted that this is absolutely untenable and
without any basis; and hence prayed that Ext.P4
be set aside and his client be afforded regular
opportunities of interacting with the children
during day times on specified days every month.
5. However, in response to the afore,
Sri.A.Jithin Babu - learned counsel for the
respondents, argued that the children do not
have any bonding with the paternal grandparents,
especially since their mother was killed in
their presence by their father. He then added
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that the attempt of the paternal grandparents to
obtain the custody of the children, is not
guided by any genuine desire, but only to drive
a hard bargain, so as to obtain exoneration of
their son, who is now in jail. He thus prayed
that Ext.P4 be left uninterdicted.
6. We have examined Ext.P4 on the
touchstone of the arguments impelled by the
learned Senior Counsel and the learned counsel
for the parties.
7. When one reads Ext.P4, it is
rendered luculent that the application of the
paternal grandparents, namely the petitioners
herein, had been rejected, finding their
allegations to be untrue.
8. As regards the imputation that the
children were growing up in two different
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houses, the learned Family Court is seen to have
concluded that this was not true and that the
younger of the children was once found in
another home, namely that of the sister of the
second respondent, so as to enable his breast
feeding.
9. As regards the allegation that the
children were being mistreated by the
respondents, the learned Family Court has
conclusively found otherwise.
10. Even if the afore be so, we are of
the, prima facie, view that the learned Family
Court ought to have considered if the paternal
grandparents can be allowed interactions with
the children. Of course, the argument of the
respondents herein that the intent of the
petitioners is not sincere and that their
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attempt is obtain exoneration of their son in
the criminal case also ought to be specifically
evaluated and assessment as per law during such
process.
11. We are, therefore, of the firm view
that the order now impugned by the petitioners
requires to be set aside, so that I.A.No.2/2023
in GOP No.2328/2023 filed by them can seize the
attention of the learned Family Court again,
however, only with respect to the request of
visitation made before us in favour of the
petitioners herein, by their learned Senior
Counsel.
In the afore circumstances, we allow this
Original Petition and set aside Ext.P4 to the
extent to which it has denied visitation rights
over the children to the petitioners; with a
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consequential direction to the learned Family
Court, Kunnamkulam, to reconsider I.A.No.2/2023
in GOP No.2328/2023 to such extent, after
affording necessary opportunity to both sides;
thus culminating in an appropriate order
thereon, as expeditiously as is possible, but
not later than three months from the date of
receipt of a copy of this judgment.
We, however, clarify that our observations
herein are not intended to fetter the competence
of the learned Family Court in any manner; and
that it will be at full liberty to decide the
interim application, to the extent above, as per
law, adverting to all relevant and germane
inputs and factors.
We reiteratingly clarify that the factum
of the pendency of the criminal case against the
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father of the children and its progress will
also be kept in mind by the learned Family Court
while issuing orders.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
akv JUDGE
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OP (FC) NO. 554 OF 2024
APPENDIX OF OP (FC) 554/2024
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE G.O.P. 2328/2023 ON
THE FILES OF THE FAMILY COURT,
KUNNAMKULAM DATED 29.9.2023
EXHIBIT P2 TRUE COPY OF I.A. 2/2023 DATED
29.09.2023 IN GO.P. 2328/2023 , FAMILY
COURT, KUNNAMKULAM
EXHIBIT P3 TRUE COPY OF THE COUNTER FILED BY THE
RESPONDENTS IN I.A.2/2023 IN
G.O.P.2328/2023 ON THE FILE OF THE
FAMILY COURT, KUNNAMKULAM DATED
07.11.23
EXHIBIT P4 TRUE COPY OF THE ORDER DATED
03.01.2024 (WRONGLY SHOWN AS 3RD
JANUARY 2023 IN THE ORDER) IN I.A.
NO.2 OF 2023 IN G.O.P. 2328/2023 ON
THE FILES OF THE FAMILY COURT,
KUNNAMKULAM
