Kerala High Court
Zuvaibathul Aslamiya vs Sabik on 20 January, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
MONDAY, THE 20TH DAY OF JANUARY 2025 / 30TH POUSHA, 1946
MAT.APPEAL NO. 363 OF 2022
AGAINST THE ORDER DATED 07.05.2022 IN OP NO.634 OF
2019 OF FAMILY COURT, MUVATTUPUZHA
APPELLANT/RESPONDENT IN OP:
ZUVAIBATHUL ASLAMIYA, AGED 28 YEARS
D/O. SALMANUL FARISY, THARAYIL HOUSE,
MUDIKKAL P.O., PALLIPPURAM, MARAMPILLY
VILLAGE, PERUMBAVOOR 683 547.
BY ADVS.
M.K.ABOOBACKER
D.M.NOWFAL
RESPONDENT/PETITIONER IN OP:
SABIK, AGED 34 YEARS, S/O. SAGEER,
PULIKKOOTIL HOUSE, MADAVANA KARA, ERIYAD,
MADAVANA P.O., KODUNGALLOOR 680 666.
BY
SRI SABIK (PARTY- IN -PERSON)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
20.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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Mat Appeal 363/22
2
JUDGMENT
Devan Ramachandran, J.
The appellant calls into question the correctness of the
judgment of the learned Family Court, Muvattupuzha, allowing
O.P.No.634/2019 - which was was filed by the respondent-father
of the minor child, seeking his permanent custody.
2. The appellant-mother contends that the judgment of
the learned Family Court suffers from various errors, primary of
them being that it is edificed on certain assumptions and
surmises, without being supported by evidence or factual
corroboration. She thus prays that the impugned judgment be set
aside.
3. Sri.M.K.Aboobacker - learned counsel for the
appellant, pointed out that the child was born to the couple on
11.09.2017 and is now about 7 years in age. He explained that,
unfortunately, soon after the marriage, the parties had
matrimonial disputes between them, leading to the respondent-
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husband pronouncing 'Thalaq'; subsequent to which, both of
them remarried, after certain durations. He showed us that, even
going by the admitted case, the child was always with the
mother; and that even at the time when the divorce was settled,
it was agreed by the respondent that the said arrangement would
continue, with him also agreeing to pay Rs.3,000/- towards
maintenance.
4. Sri.M.K.Aboobacker further contended that, in the
backdrop of the above factual circumstances, the learned Family
Court could have found no reason to have disturbed the
arrangement, merely because his client had remarried. He
reiterated that, in fact, both parties have remarried; and that it is
on record that the respondent's version is that his new wife is
willing to take care of the child; solely based on such unverified
assurance, without any tenable basis, the child has been now
ordered to be returned to him on a permanent basis, with only
visitation rights being reserved in his client's favour.
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5. Sri.M.K.Aboobacker thereafter accused the learned
Family Court of having employed surmises, showing us that the
impugned judgment insinuates that since the appellant has two
other children from her subsequent marriage, she would not be
able to devote as much time as is necessary to the child in
question; and further that, since the latter is studying in a school
near to her parental home, it should be presumed that he is
staying with his maternal grandparents, and not with his mother.
He vehemently submitted that these findings are all untrue,
without the support of any evidence, much less credible inputs;
and therefore, that the impugned judgment is liable to be
interfered.
6. We notice from the file that though summons to the
respondent has been validly served, he was never represented
through counsel, but have chosen contest in the matter in
person. However, though this matter has been listed several times
in the past for hearing, the respondent has failed to be present
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on each of such occasion. In fact, Sri.M.A.Aboobacker - learned
counsel for the appellant, today submitted that the respondent is
abroad. We are thus constrained to dispose of this Appeal in the
absence of the respondent.
7. We have examined the impugned judgment, on the
touchstone of the evidence on record.
8. The Original Petition, from which this Appeal arises,
was heard along with a Maintenance Case filed by the wife and
most of the evidence on record relate to the latter case.
9. Going by the admitted version of the parties, they had
a divorce, underpinned certain conditions - one of them being
that the child shall be with the mother, with the father paying
Rs.3,000/- towards maintenance.
10. Interestingly, the learned Family Court notes the
above, but says that, since the child is now older and because
the father is not paying the maintenance regularly, it would be
better in the former's interest that he be given in custody to the
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latter. One certainly cannot comprehend the purport of such
finding because, the factum of the father not having paid
maintenance as agreed by him could have been used only against
him, and not against the mother, as has been done now. So is
the adumbrated impression of the learned Family Court that the
mother does not have enough resources, for which also, it relies
upon the agreement between the parties that the husband will
pay only Rs.3,000/- per month. The refusal of the husband to
pay a larger amount of maintenance cannot be a ground to find
the mother financially weak; and in any event, even if this be
so, we fail to understand how this can oust her from custody of
the child. This is exacerbated because, the learned Family Court
has found from the evidence that the appellant is a Pharmacist
with high qualifications; coupled with the factum of her having
married again, with two other children, necessitates an opinion
contrary to what has been taken by the learned Family Court.
11. Pertinently, more than all the above, the learned
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Family Court appears to have arrived at its decision on the
impression that the child is not with the mother, but her parents.
For this, it records that 'there is reliable, convincing and
believable evidence establishing and proving that the minor is
with respondent's parents at Mudikkal' (sic). This impression has
been gathered because the child is stated to have said, at the
time of interaction, that he is staying at Mudikkal and that he
would be happy to be with his father.
12. However, when this matter was pending before this
Court, several reports were ordered to be obtained from the
Child Welfare Committee, Ernakulam, and other jurisdictional
Authorities; which are now available, along with the inputs from
the School, particularly with respect to the bus trips for students.
The reports clearly establish that the child takes the school bus
from Marampilly in the morning and is brought back at the same
place in the evening, with the mother dropping him and
collecting him from there in her car. The report also indicates
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that the child is happy with the mother; and this belies the
interactive impression obtained by the learned Family Court, as
recorded in the impugned judgment.
13. Even assuming that the child is with the father of the
appellant, we cannot understand the reason why the learned
Family Court should have divested her of custody of the child,
because it is possible that some arrangements could be made by
parents with respect to the education of the child, including by
using alternatively available facilities. We do not propose or need
to speak anything further on this because, the overriding
evidence and materials available with us, including the reports
that have been obtained from the Child Welfare Committee,
manifests without doubt that the child is at Marampilly, which is
to mean at the residence of the appellant and that he takes the
School Bus and is dropped back at the same place.
14. In the afore circumstances, we are convinced that the
appellant is entitled to relief and that the custodial arrangement
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in her favour qua the child could not have been disturbed by the
learned Family Court for the reasons mentioned in the impugned
judgment.
Resultantly, this Appeal is allowed and the impugned
judgment in O.P.No.634/2019, on the files of the learned Family
Court, Muvattupuzha, is set aside.
As a corollary to the above, the permanent custody of the
child will remain with the mother.
We could have considered grant of visitation to the father,
if he had requested so, but since he is absent, we do not deem it
necessary to issue orders qua such.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
JUDGE
RR
