Kerala High Court
Anuraj T.R vs Divya on 25 June, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
TUESDAY, THE 25TH DAY OF JUNE 2024 / 4TH ASHADHA, 1946
MAT.APPEAL NO. 794 OF 2023
AGAINST THE ORDER DATED 16.01.2023 IN OPGW NO.169 OF 2019 OF FAMILY
COURT, MAVELIKKARA
APPELLANT:
ANURAJ T.R.
AGED 37 YEARS
THANDASSERIL HOUSE, VARANTHANAPPALLY P.O.,
VARANTHANAPPALLY VILLAGE, CHALAKKUDY TALUK,
THRISSUR DISTRICT, PIN - 680307
BY ADVS.
ANOOP.V.NAIR
ROHITH C.
TANOOSHA PAUL
RESPONDENT:
DIVYA
AGED 36 YEARS
KAMALADALAM, MANNAR P.O., MANNAR VILLAGE,
CHENGANNUR TALUK, ALAPPUZHA,, PIN - 689121
BY ADVS.
ADITHYA RAJEEV
S.PARVATHI(K/000823/2015)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
25.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
MAT. APPEAL No. 794 of 2023
JUDGMENT
Raja Vijayaraghavan, J.
This petition is filed challenging the order dated 16.01.2023 in O.P. (G & W) 169/2019 passed by the Family Court, Mavelikkara.
2. The appellant herein is the former husband of the respondent. He had approached the Family Court and filed a petition under Section 10 of the Guardians and Wards Act, 1980 seeking to appoint him as the guardian of a minor boy, who is aged 13 years. The petitioner contended that he is a Graduate and being the natural guardian and having a capacity to maintain the child, he may be appointed as the guardian of the ward.
3. An objection was filed by the respondent denying the assertions in the petition. She stated that the appellant had deserted the wife and child in the year 2016 after manhandling her. A complaint was lodged before the police. She has also preferred M.C.No. 78/2016 seeking recovery of gold ornaments and for grant of maintenance. She stated that the appellant has committed default in paying maintenance and as of 3 MAT. APPEAL No. 794 of 2023 date, a sum of Rs.1,43,000/- remains due. It was further stated that the respondent is a Physiotherapist by profession and she has been properly taking care of the well-being of the child. She also stated that the appellant has drinking issues and is a person with no means.
4. Before the Family Court, the appellant entered the box and tendered evidence as PW1 and on his side, Exts.A1 and A2 were marked. On the side of the respondent, she entered the box and examined herself as RW1 and on her side Exts.B1 to B19 were marked.
5. The Family Court, after evaluating the entire evidence, came to the conclusion that the best interest of the child will be served if the mother remains the guardian of the child. Based on evidence, it was held that the appellant was unfit and not qualified to be appointed as a guardian.
6. The above order is under challenge.
7. We have heard Sri. Anoop V. Nair, the learned counsel appearing for the appellant and Sri. Aditya Rajeev, the learned counsel appearing for the respondent.
4MAT. APPEAL No. 794 of 2023
8. Sri.Anoop V. Nair, the learned counsel submits that the order rendered by the Family Court cannot be sustained under law. According to the learned counsel, the Family Court, while rejecting the prayer for permanent custody has denied the father any contact or visitation rights. According to the learned counsel, there was absolutely no justification in taking a view that the father was unfit to be the guardian of the child.
9. Sri. Aidtya Rajeev, the learned counsel submits that the Family court had interacted with the parties and had evaluated the evidence to come to the conclusion that the mother was the fit person to have custody of the child. According to the learned counsel, the appeal is without merit.
10. We have considered the submissions advanced.
11. By order dated 06.02.2024, we had directed the parties to undergo mediation. Later, the parties were directed to appear before this Court for interaction. We have interacted with the appellant, the respondent as well as the minor boy, who is about 13 years of age.
12. It appears from the interaction that the mother of the child is 5 MAT. APPEAL No. 794 of 2023 working as a Physiotherapist. The parties have parted ways. The wife has serious grievances against the father. The minor boy stated before us the reasons as to why he does not want to spend overnight custody with his father. We do not think that it is necessary to state the reasons given by the child. Suffice to say that the child is emotionally quite distant from the father and he stated before us that it is quite tormenting for him to spend the night with the father. He, however, stated that he has no serious objection in spending a few hours bimonthly on Saturdays. Of course, Sri. Anoop V. Nair, the learned counsel handed over certain photographs to substantiate that the child was happy in the company of the father and he has been tutored by his mother to say otherwise. We have gone through the photographs. However, from our interaction we find that the child has some serious reservations being with the father overnight. We are of the view that the order passed by the Family court can be modified for the time being and an opportunity can be granted to the father to have day custody for about 6 months. Thereafter, it would be open to the petitioner to move the Family court for modification, if so advised.
13. However, we find from the submissions that M.C. No. 78/2016 was filed by the respondent seeking maintenance and the same 6 MAT. APPEAL No. 794 of 2023 was ordered by the Family Court. From the submissions made by the learned counsel appearing for the respondent, it appears that a sum of Rs.1,43,000/- is due, less the amount of Rs.20,000/-, which was recently paid. Sri. Anoop V. Nair, the learned counsel appearing for the appellant submits that further amounts have also been paid and undertakes to clear off the entire outstanding before the end of July, 2024. We record the undertaking given by the learned counsel.
In view of the discussion above, this appeal will stand partly allowed and the following directions are issued:
a) The appellant shall be granted custody of the child on the 2nd and 4th Saturdays of every month henceforth. It is made clear that if so advised, the appellant may move the Family Court not earlier than six months from today seeking modification and for grant of overnight custody. If any such application is filed, the same shall be considered and after ascertaining the wishes of the child, appropriate orders shall be passed.
b) The maintenance due to the child shall be cleared off on or before 30.7.2024. It is also made clear that before filing an application for 7 MAT. APPEAL No. 794 of 2023 modification, the appellant shall be bound to clear off the entire arrears of maintenance due to the child as of that date.
sd/-
RAJA VIJAYARAGHAVAN V, JUDGE sd/-
P.M.MANOJ JUDGE DCS 8 MAT. APPEAL No. 794 of 2023 APPENDIX OF MAT.APPEAL 794/2023 PETITIONER ANNEXURES Annexure 1 CERTIFIED COPY OF THE ORDER DATED 16.01.2023 IN O.P. (G&W) NO. 169/2019 OF THE FAMILY COURT, MAVELIKARA RESPONDENT ANNEXURES Annexure-R1(a) A true copy of the proceedings sheet in MC 78/2016 before the Judicial First Class Magistrate Court, Chengannur Annexure-R1(b) A true copy of the order dated 07.10.2017 in CMP No. 1978/2017 in MC 78/2016 before the Judicial First Class Magistrate Court, Chengannur Annexure-R1(c) A true copy of the proceeding sheet in CMP No. 2926/2021 in MC No. 78/2016 before the Judicial First Class Magistrate Court, Chengannur