Kerala High Court
Jameela vs Hidayathulla on 25 August, 2020
Author: Bechu Kurian Thomas
Bench: S.V.Bhatti, Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942
Mat.Appeal.No.379 OF 2020
AGAINST THE ORDER/JUDGMENT IN OPGW 408/2018 DATED 26-05-
2020 OF FAMILY COURT, KASARAGOD
APPELLANT/S:
JAMEELA
AGED 35 YEARS
D/O.ABDULLA HAJI.B.M., W/O.HIDAYATHULLA,
RESIDING AT RISHAD MANZIL, MADHUR VILLAGE,
HIDAYATHNAGAR POST, KASARAGOD TALUK AND
DISTRICT.
BY ADVS.
SRI.MUHAMMED YASIL
SRI.K.P.HARISH
RESPONDENT/S:
HIDAYATHULLA
AGED 41 YEARS
S/O.ABDULL, RESIDING AT MUDIYAKKAL HOUSE,
PALLIKERE II VILLAGE, BEKAL POST, HOSDURG
TALUK, KASARAGOD DISTRICT.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
25.08.2020, ALONG WITH Mat.Appeal.407/2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
Mat. Appeal Nos.379 & 407/20 -:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942
Mat.Appeal.No.407 OF 2020
AGAINST THE ORDER/JUDGMENT IN OPGW 408/2018 DATED 26-05-
2020 OF FAMILY COURT, KASARAGOD
APPELLANT/S:
HIDAYATHULLA
AGED 43 YEARS
S/O. ABDULLA, R/AT MUDIYAKKAL HOUSE, PALLIKERA
II VILLAGE, BEKAL POST, HOSDURG TALUK, KASARGOD
DIST,PIN-671 318
BY ADVS.
SRI.SHIRAZ ABDULLA
SRI.M.S.IMTHIYAZ AHAMMED
SRI.K.ABDUL NASSAR
RESPONDENT/S:
JAMEELA
W/O. HIDAYATHULLA, D/O. ABDULLA HAJI.B.M., R/AT
RISHAD MANZIL, MADHUR VILLAGE, HIDAYATHNAGAR
P.O., KASARGOD DIST, PIN-671 123
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
25.08.2020, ALONG WITH Mat.Appeal.379/2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
Mat. Appeal Nos.379 & 407/20 -:3:-
JUDGMENT
Dated this the 25th day of August, 2020 Bechu Kurian Thomas, J.
These appeals are filed challenging the judgment dated 26.5.2020 in O.P.(G&W) No.408 of 2018 of the Family Court, Kasaragod. Mat. Appeal No.379 of 2020 is filed by the petitioner and Mat. Appeal No.407 of 2020 is filed by the respondent before the court below.
2. By the impugned judgment, the Family Court allowed in part the original petition, for appointment of guardian of four minor children. Permanent custody of minor son 'Abdul Hafeez', aged 6 years, was granted to the mother while permanent custody of the three minor daughters aged 14, 9 and 4 years was denied to the mother. Instead, she was given visitation rights over the three daughters for two hours every 15 days. The Family Court further ordered that in order to have companionship amongst the siblings, custody of the minor son was given to the father for half the period of holidays during all the major vacations like Onam, Christmas and summer vacation. The mother of the children has preferred Mat. Appeal No.379 of 2020 challenging the denial of custody of the three daughters while Mat. Appeal Nos.379 & 407/20 -:4:- Mat. Appeal No.407 of 2020 has been preferred by the father, challenging the grant of custody of the son to the mother.
3. For the purpose of easy reference, we are referring to the parties as they are arrayed in Mat. Appeal No.379 of 2020, where the appellant is the mother and respondent, the father.
4. The appellant contends that the judgment is against all well settled precedents and that declining to grant custody of the three daughters to her completely ignores the principles of parens patriae jurisdiction where welfare of the children is of paramount consideration. It was further contended that the Family Court went on a completely wrong tangent while denying custody of the daughters to the mother on the basis of the false allegations levelled against her. She further states that the respondent is incapable of looking after the children, more so since he has remarried and the children are left at the mercy of his sister, which causes great prejudice to them. The appellant contends that, if the children grows up without having the care, custody and affection of the mother, they will be put to great prejudice and their welfare will be jeopardized.
5. The respondent on the other hand contends in Mat. Appeal No.407 of 2020 that granting custody of the minor son to the appellant was unwarranted, taking into account, totality of Mat. Appeal Nos.379 & 407/20 -:5:- the circumstances. According to him, the appellant had renounced the respondent, opting to live a life with a paramour and even went on to sexually abuse the minor daughter, which vital factor was borne in mind by the Family Court to deny custody of the daughters to the appellant. He stated that he has remarried a divorcee, for the purpose of taking care of the welfare of the children and that they are comfortably residing together. Respondent pleads that, to remove one of the siblings from the companionship of the remaining siblings is too harsh. It is contended that the Family Court granting custody of the son to the mother is by a non speaking order, without considering any of the materials that were adduced and without any basis and is liable to be interfered with. According to the respondent, the alleged moral turpitude of the appellant was explicit and makes her ineligible for custody of even the minor son.
6. We have heard Sri.K.P.Harish, learned counsel for the appellant and Sri.Shiraz Abdulla M.S., learned counsel for the respondent.
7. Adv.Sri.K.P.Harish, apart from reiterating the contentions already mentioned above, urged this Court with further vehemence to interfere with the order of the Family Court since, according to him, the court gave undue importance to a false Mat. Appeal Nos.379 & 407/20 -:6:- allegation raised. According to him, the allegation of immoral relationship and sexual abuse are totally false and mere vilification created by the respondent with viciousness for the purpose of denying custody of the minor children to the appellant and also for getting remarried to another lady. Apart from the allegation of illicit relationship, which is completely false and baseless, the learned counsel urges this Court that the welfare of the minor children would certainly be best served in the hands of the mother rather than the father especially since for almost fourteen years she had dedicated her life completely for the benefit of her children.
8. Learned counsel for the respondent on the other hand invited our attention to Ext.B2, the final report in Crime No.357 of 2018 of Bekal Police Station, which is now pending consideration as S.C. No.39 of 2019 before the Sessions Court, Kasaragod, registered under the Protection of Children from Sexual Offences Act, 2012, and contends that it is not safe to entrust the custody of the minor children with the appellant.
9. We have anxiously considered the contentions raised by both counsel. We have also analysed the impugned judgment. We are pained to note that the custody of three minor girl children have been denied to the mother without sufficient Mat. Appeal Nos.379 & 407/20 -:7:- reasons.
10. A perusal of Ext.B2 final report by itself is certainly not sufficient to warrant complete denial of custody to the mother, especially that of the three minor daughters. The presence, care and affection of the mother, at a time when the daughters attain puberty, is a relevant factor which failed to attract the attention of the Family Court. The affection that a mother can impart to her daughters is incomparable, especially in those times of puberty. When the mother is alive, she cannot be replaced by a third party. However, the allegation of sexual abuse is also a consideration, not for the purpose of denying custody to the mother is entirely but certainly for the purpose of restraining any form of access for the stranger to the children.
11. Court have time and again reiterated the importance of mothers affection in the growing years of a daughter. Further the welfare of the children must of necessity prevail as the foremost and overriding consideration as held in Prateek Gupta v. Shilpi Gupta and Others (2018) 2 SCC 309). The rule of the court in such matters is to be proactive and sensibly objective as held in Santhini v. Vijaya Venketesh (2018) 1 SCC 1). The attempt of one parent in tutoring the children against the other parent, false allegations with sexual overtones are all devious Mat. Appeal Nos.379 & 407/20 -:8:- methods that are at times resorted to by one parent or the other so as to deny custody of the children. In such circumstances, the court in exercise of the parens patriae jurisdiction identify the welfare of the children not by reference to one incident or instance, but an entirety of the circumstances that arise in the case. While arriving at such a conclusion, court ought not to adopt a mechanical approach.
12. We find that the Family Court went on a wrong tangent to deny custody of the minor girl children to the mother entirely relying upon one solitary circumstance. We feel that the remarriage of the respondent was also a factor which ought to have been reckoned with, by the Family Court while considering the welfare of the minor children.
13. In view of the fact that the judgment is bereft of sufficient reasoning, we set aside the impugned judgment in its entirety and remit the matter for a fresh consideration by the Family Court. Needless to say that the Family Court shall consider the question of custody of the four minor children afresh, untrammelled by any of the observations contained in this judgment, within a period of four months from the date of receipt of a copy of this judgment.
14. This leads us to the question of the interim Mat. Appeal Nos.379 & 407/20 -:9:- arrangement required, regarding the custody of the four minor children. Since both counsel are in agreement that the four children being siblings, should not be separated from each other and that mutual companionship certainly augurs well for their welfare, we feel that the mother shall have custody of the four minor children from 27.08.2020 till 07.09.2020 and also during every weekend till a decision is taken as directed by us.
15. The respondent-father is hereby directed to handover the four minor children to the mother at 10.30 am on 27.9.2020 and the appellant-mother shall return the four minor children to the respondent-father at 4.00 pm on 07.09.2020. The venue of exchange shall be the Family Court, Kasaragod and exchange shall be entered in register kept in court. As regards the weekend custody till a final decision is taken, as directed above, we direct that the mother shall have custody of the four minor children from 6.00 am on every Saturday till 6.00 pm on every Sunday. Respondent-father shall for that purpose bring the four minor children to the residence of the appellant-mother by 6.00 pm on every Friday and thereafter collect the children at 6.00 pm on Sunday. As mentioned above, this arrangement shall continue until final orders are passed in the original petition. The appellant shall not under any circumstances whatsoever enable Mat. Appeal Nos.379 & 407/20 -:10:- any sort of access or interaction of the alleged paramour with the children.
With the aforesaid directions, these appeals are allowed.
Sd/-
S.V.BHATTI JUDGE Sd/-
BECHU KURIAN THOMAS JUDGE JS /vps