Kerala High Court
Shameer T vs E.V. Sharfiya on 3 September, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
2024:KER:67062
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
OP (FC) NO. 484 OF 2024
AGAINST THE ORDER DATED 03.06.2024 IN I.A.NO.2/2024 IN OP
NO.462 OF 2024 OF FAMILY COURT, THALASSERY
PETITIONER:
SHAMEER T., AGED 37 YEARS, S/O. THARUVAYIKUTTI,
THADAYIL HOUSE, KANTHAPURAM, UNNIKULAM P.O.,
THAMARASSRERY, KOZHIKODE., PIN - 673574
BY ADVS.
MATHEW KURIAKOSE
T.G.SUNIL (PERUMBAVOOR)
J.KRISHNAKUMAR (ADOOR)
C.N.PRAKASH
MONI GEORGE
SHAJI P.K.
PREETHU JAGATHY
ARUN.S.
RESPONDENT:
E.V. SHARFIYA, AGED 29 YEARS, D/O. E.V. ALAVI,
THADAYIL HOUSE, KANTHAPURAM, UNNIKULAM P.O.,
THAMARASSRERY, KOZHIKODE DISTRICT, NOW RESIDING
AT NALPPADI HOUSE, ERANHOLIPPALAM, CHIRAKKARA,
THALASSERY POST, KANNUR, PIN - 670104
BY ADVS.
M.K.MUFEED
MUHAMMED YASIL(K/000989/2017)
M.A.AHAMMAD SAHEER(K/829/2013)
E.A.HARIS(K/254/2013)
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
03.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(FC) 484/2024
2
JUDGMENT
The petitioner, who is the father of a 3½ year old boy,
impugns Ext.P5 order of the learned Family Court, Thalassery,
granting interim custody of the child to the respondent-mother; and
then confining his visitation only to a few hours on the first
Saturdays of every month, as being illegal and unlawful.
2. Before we move forward, we must record that we had
considered this matter on 02.08.2024 and our opinion was indited
in the order as under:
Sri.Mathew Kuriakose - learned counsel for the
petitioner, submitted that, though his client has a case
against the maintainability of the Original Petition before
the learned Family Court, Thalassery, he does not intend to
press it for the time being, as his intention is to see the
child.
2. We are informed by the learned counsel for the
respondent - Sri.M.K.Mufeed, that the child is currently
with her at Thalassery, and that she is willing to come here
at 10.15 a.m. on 16.08.2024.
3. Sri.Mathew Kuriakose also added that his client will also
be present on the aforesaid day before this Court.
4. In the meanwhile, we direct the respondent to
comply with the directions of the learned Family Court
implicitly.
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OP(FC) 484/2024
List, therefore, on 16.08.2024.
3. We have now received the Report of the Counsellor,
Family Counselling Centre, who has reported that the child has
equal affection for the parents; and that, even though he is staying
with the mother, he does not show any sense of alienation or
detachment to his father. The Counsellor has further opined that
parental detachment may affect the socio-emotional development
of the child; while any detachment from the mother would cause
him cognitive and emotional impairment. The Counsellor closes the
Report with the opinion that the well-being of the minor child
would be best served by the care, protection, love and affection of
both the parents; and has also called for a follow-up session, if
required.
4. However, we see from the afore Report that, even
during the interaction, the respondent-mother expressed her
unwillingness for a reconciliation. We are not, therefore, sure
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whether it would serve any purpose for us to ask the parties to
continue counselling.
5. That being said, we notice from Ext.P5 that the learned
Family Court had considered every aspect, including the allegation
of the mother that the petitioner-father had earlier taken away the
child forcibly, leading to Ext.A2 FIR being registered. We do not
propose to speak much at this stage because, the child is only 3½
years in age and his interest would certainly be best served with
the mother, than with the father, at least at the present situation.
6. The afore opinion of ours is edificed on the ground
reality as available today; and we are sure that if the father
requires any further modification, including for overnight custody
of the child, he can move the learned Family Court, appositely.
7. That said, however, we find some force in the request
of Sri.Mathew Kuriakose, made on behalf of the petitioner, that
the time for interaction of his client with the child be enhanced at
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least by two hours. He added that, if this is allowed, then his
client seeks no other reliefs in this Original Petition and will move
the learned Family Court appropriately in future.
8. We, therefore, put it to the learned counsel for the
respondent, who affirmed that the time for visitation of the
petitioner can be enhanced till 5 P.M. Sri.Mathew Kuriakose
agreed to this.
In the afore circumstances, with the consent of both sides,
we dispose of this Original Petition, confirming Ext.P5; however,
modifying the second direction therein, thus permitting the
petitioner to interact with the child on the first Saturday of every
month from 10.30 A.M. till 5 P.M.
As we have already said above, the liberty of the
petitioner/respondent to seek further modification of Ext.P5 before
the learned Family Court in future, including for overnight custody
of the child, are fully left open; and if he is to invoke this, the
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learned Court will consider the same in terms of law, after
interacting with the parties, as well as the child.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
JUDGE
RR
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OP(FC) 484/2024
APPENDIX OF OP (FC) 484/2024
PETITIONER EXHIBITS
Exhibit P 1 TRUE COPY OF THE PETITION IN O.P. NO.
775/2024 ON THE FILES OF THE FAMILY
COURT, KOZHIKODE
Exhibit P 2 TRUE COPY OF THE PETITION IN O.P. NO.
462/2024 ON THE FILES OF THE FAMILY
COURT, THALASSERY
Exhibit P 3 TRUE COPY OF THE AFFIDAVIT AND
APPLICATION IN I.A. NO. 2/2024 IN O.P.
NO. 462/2024 ON THE FILES OF THE FAMILY
COURT, THALASSERY
Exhibit P 4 TRUE COPY OF THE COUNTER STATEMENT IN
I.A. NO. 2/2024 IN O.P. NO. 462/2024 ON
THE FILES OF THE FAMILY COURT, THALASSERY
Exhibit P 5 TRUE COPY OF THE ORDER DATED 03.06.2024
IN I.A. NO. 2/2024 IN O.P. NO. 462/2024
ON THE FILES OF THE FAMILY COURT,
THALASSERY
