Kerala High Court
Shaharban vs Buhari Valappil on 10 July, 2012
Bench: K.T.Sankaran, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
TUESDAY, THE 10TH DAY OF JULY 2012/19TH ASHADHA 1934
OP (FC).No. 2073 of 2012 (R)
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I.A..NO.1020/2012 IN OP.NO.200/2011 of FAMILY COURT, MALAPPURAM
PETITIONER(S):
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SHAHARBAN, AGED 27 YEARS
D/O. ALIKUTTY, THANIKKAT, MANGALAM AMSOM
KUTTAYI DESOM, TIRUR TALUK, KUTTAYI P.O.
MALAPPURAM DISTRICT-676 562.
BY ADVS.SRI.K.M.FIROZ
SMT.M.SHAJNA
RESPONDENT(S):
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1. BUHARI VALAPPIL, AGED 31 YEARS
S/O. VALAPPIL MUHAMMED, THALAKKAD AMSOM
THEVALAPURAM DESOM, KATTACHIRA, TIRUR TALUK
B.P.ANGADI P.O., MALAPPURAM DISTRICT-676 102.
2. MULAKKAL UMMACHU , AGED 57 YEARS
W/O. VALAPPIL MUHAMMED, THALAKKAD AMSOM
THEVALAPURAM DESOM, KATTACHIRA, TIRUR TALUK
B.P.ANGADI P.O., MALAPPURAM DISTRICT-676 102.
BY ADV. SRI.JAMSHEED HAFIZ
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03-07-2012,
THE COURT ON 10/07/2012 DELIVERED THE FOLLOWING:
O.P.(FC) NO.2073 OF 2012
APPENDIX
PETITIONER(S) EXHIBITS
EXT.P1 : TRUE COPY OF THE ORIGINAL PETITION OP 200/2011 FILED BY THE
RESPONDENTS 1 AND 2 HEREIN BEFORE THE FAMILY COURT, MALAPPURAM.
EXT.P2 : TRUE COPY OF THE OBJECTION/WRITTEN STATEMENT FILED BY THE
PETITIONER HEREIN IN OP 200/2011 BEFORE THE FAMILY COURT, MALAPPURAM.
EXT.P3 : TRUE COPY OF THE CERTIFICATE ISSUED BY THE DOCTOR, WHO TREATED
THE MINOR CHILD, DTD.12.12.2011.
EXT.P4 : TRUE COPY OF THE COMMUNICATION DTD.29.11.2011 ISSUED BY THE
MASJID MAHALLU COMMITTEE TO THE PETITIONER.
EXT.P5 : TRUE COPY OF THE FIR DTD.27.11.2011 IN CRIME NO.916/2011 OF TIRUR
POLICE STATION.
EXT.P6 : TRUE COPY OF THE JUDGMENT IN OPFC NO.4160/2011 DTD.10.1.2012 BY
THIS HON'BLE COURT.
EXT.P7 : A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE
THE SUB-INSPECTOR OF POLICE, TIRUR, DTD.23.1.2012.
EXT.P8 : A TRUE COPY OF THE FIRST INFORMATION REPORT IN THE CRIME
NO.117/2012 REGISTERED BY THE 3RD RESPONDENT POLICE DTD.25.1.2012.
EXT.P9 : TRUE COPY OF THE ORDER IN RP NO.113/2012 IN OPFC NO.4160/2011 BY
THIS HON'BLE COURT.
EXT.P10: TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE DR.P.HAMEED,
DTD.7.5.2012.
EXT.P11: TRUE COPY OF THE AFFIDAVIT SUBMITTED BY 1ST RESPONDENT BEFORE
FAMILY COURT, MALAPPURAM, DTD.28.5.2012.
EXT.P12: TRUE COPY OF THE COUNTER AFFIDAVIT SUBMITTED BY THE PETITIONER
BEFORE FAMILY COURT, MALAPPURAM IN OP 200/2011, DTD.30.5.2012.
EXT.P13: TRUE COPY OF THE AFFIDAVIT SUBMITTED BY 1ST RESPONDENT BEFORE
THE FAMILY COURT, MALAPPURAM IN OP 200/2011, DTD.5.6.2012.
EXT.P14: TRUE COPY OF THE ORDER IA NO.1020/2012 IN OP 200/2011 ISSUED BY
FAMILY COURT, MALAPPURAM DTD.15.6.2012.
RESPONDENTS' EXHIBITS : NIL.
(TRUE COPY)
K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.
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O.P.(FC) No.2073 of 2012
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Dated 10th July, 2012.
J U D G M E N T
Joseph Francis, J.
The main prayer in the above Original Petition filed under Article 227 of the Constitution of India is to set aside the order dated 15.6.2012 in I.A.No.1020 of 2012 in O.P.No.200 of 2011 on the file of the Family Court, Malappuram.
2. The facts of the case are briefly as follows : The petitioner herein is the respondent in I.A.No.1020 of 2012 in O.P.No.200 of 2011 on the file of the Family Court, Malappuram. The first respondent herein married the petitioner on 18.3.2007 and he pronounced Talaq on 6.9.2010 while he was abroad. The first respondent herein married another lady by name Sakeena on 11.11.2011. O.P.No.200 of 2011 was filed by the respondents 1 and 2 herein under the provisions of Guardians and Wards Act, 1890, praying for the custody of the minor son (Ajanas Muhammed, aged 2 = years) of the petitioner and the first respondent for 2 hours on two days in a week. The second respondent herein is the mother of the first respondent and paternal grandmother of the minor child. I.A.No.1020 of 2012 in O.P.No.200 of 2011 is filed by the first OP(FC) 2073/12 2 respondent in that Original Petition under Section 12 of the Guardians and Wards Act for getting custody of the child for two weeks. As per the order in I.A.No.1020 of 2012 dated 15.6.2012, the respondent in the application was directed to hand over the custody of the child to the petitioner for two days, once in a month, i.e., first Monday and Tuesday (from 10 a.m. on Monday till 5 p.m. on Tuesday). Against that order, the respondent filed the above O.P.(FC).
3. Heard the learned counsel for the petitioner and the learned counsel for the respondents.
4. The learned counsel for the petitioner submitted that the order in the I.A. was passed without properly considering the specific direction in the judgment of this Court in O.P.(FC) No.4160 of 2011 dated 10.1.2012, permitting only temporary custody and giving opportunity to the first respondent to interact with the child in an Advocate's Office for two days in a week. The learned counsel for the petitioner submitted that the respondents are strong believers of black magic and they used to compel the child, whenever they get OP(FC) 2073/12 3 opportunity, to drink some coloured liquid prepared by that magic, which they believe will adversely change the attitude and respect of the minor boy towards the petitioner. It is also submitted that the order is a non-speaking order and the Family Court is not justified in not considering the paramount interests of the child, before passing the custody order. The learned counsel further submitted that the first respondent has married another lady, viz., Sakeena and he is in fact, not at all interested in the welfare of the child. The learned counsel for the respondents supported the order under challenge.
5. In O.P.No.200 of 2011, the petitioners therein filed several interlocutory applications for interim custody of the child. As per the order in I.A.No.2460 of 2011 dated 9.12.2011, the Family Court, Malappuram directed the Station House Officer of Tirur Police Station to hand over the custody of the minor child to the first petitioner therein. Against that order, the respondent in that I.A. filed O.P.(FC) No.4160 of 2011 before this Court. As per order dated 10.1.2012 in O.P.(FC) No.4160 of 2011, this Court directed the petitioner in that O.P.(FC) to give OP(FC) 2073/12 4 custody of the minor child to the respondents 1 and 2 by making available the child in the office of the Advocate, whom the petitioner will engage, between 3 p.m. and 5 p.m. on all Sundays and Thursdays, starting from 15.1.2012, unless a different time is intimated by the Advocate to the respondents 1 and 2. Due to some developments subsequent to that order, the petitioner in that O.P.(FC) filed R.P.No.113 of 2012 before this Court and as per the order dated 29.2.2012 in the Review Petition, this Court directed the petitioner to make available the child in the office of Advocate M.A.Ismail, Tirur, between 3 p.m. and 5 p.m. on Mondays and Thursdays and the order in that O.P.(FC) was modified in the above lines. In the order in I.A.No.1020 of 2012, the learned Family Court made a reference to the order of this Court passed in R.P.No.113 of 2012 in O.P. (FC) No.4160 of 2011. The Family Court has not given any sufficient reason for modifying the order passed by this Court in the Review Petition. Therefore, we are of the view that the Family Court is not justified in modifying the order passed by this Court in the Review Petition.
OP(FC) 2073/12 5
Accordingly, this O.P.(FC) is allowed and the order in I.A.No.1020 of 2012 in O.P.No.200 of 2011 on the file of the Family Court, Malappuram is set aside. The parties are directed to comply with the order of this Court in R.P.No.113 of 2012 in O.P.(FC) No.4160 of 2011 dated 29.2.2012. It is made clear that if there is any substantial change in the circumstances, the Family Court is at liberty to pass appropriate orders, modifying the order passed by this Court. There is no order as to costs.
Sd/-
K.T.SANKARAN, JUDGE.
Sd/-
M.L.JOSEPH FRANCIS, JUDGE.
tgs (true copy)