Allowed

Shakeela.M.v. v. Shakeer

Kerala HC1 Jun 2012OP (FC)/944/2012

Case brief

AI extract

What is this about?

This Division Bench challenged the implementation of a Family Court order granting interim custody to the respondent. The court quashed the challenged order, citing lack of proper interaction and aggravation of court scenes, and directed parties to comply with an earlier 2011 family court order.

What did the court decide?

The order dated 9th March 2012 in I.A. No.294 of 2012 was set aside. Parties directed to comply with the order dated 15th June 2011.

Shakeela.M.v. Vs Shakeer — Child Custody and Guardianship | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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FRIDAY, THE 1ST DAY OF JUNE 2012/11TH JYAISHTA 1934

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OP (FC).No. 944 of 2012 (R) --------------------------O.P.NO.446/2011 OF FAMILY COURT, MALAPPURAM

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PETITIONER(S):

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SHEKEELA.M.V., D/o.THITHEERU UMMA SHAKEELA MANZIL, MADAMPATH VALAPPIL HOUSE P.O.VALIYAKUNNU, VALIYAKUNNU AMSOM DESOM MALAPPURAM DISTRICT.

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BY ADVS.SRI.K.T.SHYAMKUMAR

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SRI.P.K.IBRAHIM SMT.A.A.SHIBI SRI.HARISH R. MENON

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RESPONDENT(S):

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SHAKKEER, 40 YEARS, S/O.M.K.MUHAMMADALI KARUVALIL HOUSE, OLAVATTOOR P.O. PANACHIKA, PALLIYALLIL, ERANAD TALUK OLAVATTOOR AMSOM DESOM MALAPPURAM DISTRICT, PIN 670 004.

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BY ADV. SRI.JAMSHEED HAFIZ

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 01-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(FC) NO.944 OF 2012 -2-

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APPENDIX

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PETITIONER'S EXHIBITS :

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EXT.P1: COPY OF I.A.NO.696/2011 IN O.P.NO.466/2011.

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EXT.P2: COPY OF THE ORDER IN I.A.NO.696/2011 DATED 15.6.2011.

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EXT.P3: COPY OF THE AFFIDAVIT SUBMITTED BY THE RESPONDENT BEFORE THE COURT BELOW.

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EXT.P4: COPY OF THE JUDGMENT DATED 20.12.2011 IN O.P.(FC) NO.3025/11.

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EXT.P5: COPY OF I.A.NO.294/2012 IN O.P.NO.446/11.

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EXT.P6: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER TO I.A.NO.294/2012 IN O.P.NO.446/2011.

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EXT.P7: COPY OF THE ORDER DATED 9.3.2012 IN I.A.NO.294/12 IN O.P.NO.446/2011.

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ADDITIONAL DOCUMENTS :

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EXT.P8: COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, VALANCHERY DATED 25.3.2012.

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EXT.P9: COPY OF THE RECEIPT ISSUED FROM VALANCHERY POLICE STATION.

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EXT.P10: COPY OF THE REFER REPORT ISSUED BY THE GOVERNMENT DOCTOR ATTACHED TO THE HEALTH CENTRE, EDAYOOR.

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EXT.P11: COPY OF THE PRESCRIPTION ISSUED FROM M.S.HOSPITAL DATED 25.3.2012.

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EXT.P12: COPY OF THE RECEIPT ISSUED BY VALANCHERY POLICE STATION DATED 20.4.2012.

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EXT.P13: COPY OF THE RECEIPT DATED 21.4.2012 ISSUED BY VALANCHERY POLICE STATION.

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EXT.P14: COPY OF THE LETTER DATED 30.4.2012 ALONG WITH THE POSTAL RECEIPT.

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RESPONDENT'S DOCUMENTS :

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ANNEXURE 1: COPY OF THE DISCHARGE SUMMERY OF THE MINOR CHILD RIDHA.

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ANNEXURE 2: COPY OF THE PRESCRIPTION OF THE ELDER CHILD.

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O.P.(FC) NO.944/2012 -3-

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ANNEXURE 3: COPY OF THE LETTER ISSUED BY THE PETITIONER DATED 25.4.2011.

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ANNEXURE 4: COPY OF THE INTIMATION FROM THE POST OFFICE DEPARTMENT ANNEXURE 5: COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 28.4.2012.

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ANNEXURE 6: COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 29.4.2012.

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ANNEXURE 7: COPY OF THE OUTGOING LIST OF THE MOBILE NUMBER FOR THE MONTH OF APRIL, 2012.

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ANNEXURE 8: COPY OF THE VIDEO C.D. TAKEN BY THE PETITIONER IN HIS MOBILE DURING APRIL, 2012.

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//TRUE COPY//

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P.A. TO JUDGE

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K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

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O.P.(F.C.) No.944 of 2012

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Dated this the 1^st day of June, 2012

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JUDGMENT

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K.T.Sankaran, J.

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The petitioner, Shakeela, is the wife of the respondent, Shakeer (Hereinafter Shakeer is referred to as the husband and Shakeela is referred to as the wife). In the wedlock, they have two girl children, aged 9 years and 4 years. The petitioner/wife and the respondent/husband are living separately. The children are with the petitioner. The respondent filed O.P.No.446 of 2011 before the Family Court, Malappuram, for custody of the children. It is stated that the wife had filed an Original Petition before the Family Court for return of the gold ornaments and cash from the husband. The cases are pending before the Family Court.

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The husband filed I.A.No.696 of 2011 in O.P.No.446 of 2011 for interim custody of the children. The Family Court passed an order dated 15^th June 2011, which reads as follows :

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O.P.(FC) No.944/2012

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“Petition filed under Section 12 of the Guardian and Wards Act. Counter filed. Heard counsels. The children shall be produced before the Counsellor at 11 A.M. on the first and last Saturday of every month and given over to petitioner and petitioner to bring back the children at 4 P.M. on the same day and Counsellor to return the children to respondent until further orders. I.A. allowed as above.”

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After passing the order dated 15^th June 2011, the wife filed an affidavit dated 27.8.2011 before the Family Court, pointing out her inability to produce the children before court. It would appear that the husband filed another application for interim custody of the children during vacation. The Family Court passed an order to produce the children. Since the children were not produced by the wife, it would appear that the Family Court ordered police assistance to implement the order of the Family Court. That order was challenged by the wife in O.P.(F.C.) No.3025 of 2011. A Division Bench of this Court observed as follows :

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“3. Whatever be the affinity that a child

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O.P.(FC) No.944/2012

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may develop as a result of its proximity to one parent to the exclusion of the other, in the long run, it is the duty of both the parents to ensure that the child gets proper access to both the parents. This would generate proper emotional development of the child in the long run. This is an accepted situation world over.”

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Thereafter, the husband filed I.A.No.294 of 2012 to grant interim custody of the children to him during all school holidays and vacations. The Family Court passed an order dated 9^th March 2012, granting custody of the children to the husband on every Saturday and Sunday as well as during Onam holidays, Christmas holidays and summer vacations. The order dated 9^th March, 2012 is under challenge in this Original Petition.

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Even when the order dated 15^th June, 2011 was sought to be implemented, lot of problems arose before the Family Court. There are allegations and counter allegations as to why the orders were not properly implemented. After the present order (order dated 9^th March, 2012), the situation became so uncontrollable.

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O.P.(FC) No.944/2012

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It would appear that the couple involved in the case have entertained a belief that the Family Court and the High Court are for resolving their case alone. Papers and CDs are dumped before this Court as if the Court is deciding a very huge appeal involving lot of questions of facts and questions of law. A simple question of interim custody of the children have been made so complicated by the parents of the children.

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In this Original Petition, an interim order was passed by a Division Bench, after interacting with the parties, as per which the husband will have custody of the children from 14.4.2012 to 20.4.2012, from 28.4.2012 to 4.5.2012 and from 12.5.2012 to 18.5.2012. The husband could take custody of the children on 14.4.2012. However, he returned the children to the wife only on 21.4.2012 instead of 20.4.2012. According to the husband, he could not give back the children on 20.4.2012 because one of the children fell ill. According to the wife, the act of the husband was deliberate and she had to approach the Circle Inspector of Police on whose intervention the children were produced in the Police Station. In respect of that particular incident alone, various

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O.P.(FC) No.944/2012

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contentions running to several pages have been put forward by both the parties in affidavit, counter affidavit, reply affidavit etc. It is stated by the husband that he did not get custody of the children on 28.4.2012 since the house of the wife was found locked on that day. He stated that he went to her house on the next day also. But on that day also, the house was locked. The husband approached this Court. This Court summoned the parties to appear on 24.5.2012. A detailed order was passed on that day directing the wife to hand over custody of the children to the husband for the period from 24.5.2012 to 31.5.2012. On the request made by the wife, a woman civil police officer was also sent along with the children to the house of the husband. A lot of incidents took place in the Court premises. The children did not go with the husband. It is alleged that the husband had used force and had beaten the children. It is also alleged that woman civil police officer had assaulted the children. A petition was submitted by the wife to the Registrar General pointing out these alleged incidents. She stated that several Advocates had witnessed the incident. There was a hue and cry in the Court till evening.

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O.P.(FC) No.944/2012

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Today the husband, wife and the children are present. We interacted with them. The wife narrated the cruel incidents which she had to suffer from her husband while they were living together. The husband narrated that his wife was cruel towards him. He stated that his wife's mother and her mother's sister are all of the same type and they never obeyed their respective husbands. We interacted with the children. The elder child told us that from 25^th May to 1^st June, she was not provided with any food by the father except a tumbler of hot water on the second day. To our repeated questions, she repeated that not even water was provided to her. She stated that after coming to the Court today, her mother gave her biriyani, banana etc. The husband and wife were witnessing while the above statements were made by the elder child. All present in Court were fully satisfied that the child was telling lies to us. Both the parents are responsible for creating such a situation. It would appear that the children would have no opportunity to learn good things from their parents and the future of the children would be seriously affected by the irresponsible conduct of their parents. For the past few months, the children heard and witnessed the war

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O.P.(FC) No.944/2012

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between their parents and they participated in the war in their own way.

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We do not propose to burden the Family Court with such incidents. If the husband and wife want to fight, let them fight outside the court. The order passed by the Family Court should not be made a tool for continuing their fight and that too in the premises of the court.

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The order dated 9^th March, 2012 was passed by the Family Court without a proper interaction between the parties and without properly comprehending the correct fact situation in the case. The Family Court does not appear to have taken into account the previous incidents and the previous proceedings. The order dated 9^th March, 2012 really aggravated unhappy scenes in the court premises. We do not think that the order dated 9^th March, 2012 should be put to force hereafter. The order dated 9^th March, 2012 in I.A.No.294 of 2012 is accordingly set aside. The parties would be governed by the order dated 15^th June, 2011. The Family Court shall implement the same in accordance with

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O.P.(FC) No.944/2012

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law. Both parties will comply with the order dated 15^th June, 2011 passed by the Family Court in letter and spirit. Let them not make the children tools for their fight. The Family Court shall dispose of the Original Petition itself as expeditiously as possible.

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Accordingly, the Original Petition is allowed and the order dated 9^th March, 2012 in I.A.No.294 of 2012 in O.P.No.446 of 2011 is set aside. The parties shall comply with the aforesaid directions.

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The petitioner stated that she does not propose to pursue the petition filed before the Registrar General and which was placed before us. That petition is accordingly closed.

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K.T.SANKARAN JUDGE

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M.L.JOSEPH FRANCIS

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JUDGE

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csl

Shakeela.M.v. v. Shakeer

Case brief

What is this about?

What did the court decide?

Shakeela.M.v. v. Shakeer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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