Remanded

Ranjini A.K. v. Rajan

Kerala HC13 Feb 2013Mat.Appeal/132/2011

Case brief

AI extract

What is this about?

The High Court, addressing an appeal against a Family Court order that modified custody arrangements (daughter to mother, two sons to father), set aside the impugned order. The Court held the Family Court failed to ascertain the children's preferences and ignored relevant financial considerations. The case is remanded for a fresh decision considering the children's wishes and financial capacity.

What did the court decide?

Impugned order set aside; case remanded to Family Court for fresh decision on custody after ascertaining children's preferences and financial capacities of guardians.

Ranjini A.K. Vs Rajan — Child Custody and Guardianship | Kerala HC (2013)

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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 PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE P.D.RAJAN

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WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934

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Mat.Appeal.No. 132 of 2011 (G)

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AGAINST THE ORDER IN I.A.1896/10 IN OP.553/2009 of FAMILY COURT, MALAPPURAM DATED 31-01-2011

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APPELLANT(S)/PETITIONER:

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RANJINI A.K.D/O.RAMAN, AREEKKODAN HOUSE, ODIYANCHOLA, EDAKKARA PO MALAPPURAM DISTRICT.

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BY ADVS.SRI.BABU S. NAIR SRI.K.RAKESH

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RESPONDENT(S)/RESPONDENT:

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RAJAN,S/O.GANAPATHI, THRUPPANCHI HOUSE, THANDUPARAKKAL, PO.VANDOOR MALAPPURAM DISTRICT-679 328.

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R1 BY ADV. SRI.K.M.SATHYANATHA MENON

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13-022013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PIUS C.KURIAKOSE & P.D.RAJAN JJ. -----------------------Mat Appeal. No. 132 OF 2011

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Dated this the 13^th day of February, 2013

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JUDGMENT

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Pius C.Kuriakose,J

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Under challenge in this appeal preferred by the appellant, who is the wife of the respondent and mother of three childrena girl now aged 17 and two boys now aged 13 and 8 respectively, is the order passed by the Family Court, Malappuram in I.A. No.1896/2010. By the impugned order, the Family Court modified the earlier order under which custody of all the three children was entrusted to the respondent-father. The modification made under the impugned order is that custody of the eldest of the three, the daughter aged 17, is given to the mother while custody of the two boys is given to the father.

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One ground, which is prominently raised and urged before us by the learned counsel for the appellant, is that the impugned order was passed by the Family Court without ascertaining the wishes of the children. Another ground ,which

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Mat. Appeal No. 132 /2011 2

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is urged, is that in the original petition filed at a time when all the three children were in the custody of the mother, the prayer of the petitioner father was that he be given the custody of Ratul, the second of the three children. That being so, the impugned order under which custody of both the sons is given to the father amounts to granting the father relief more than he had sought for.

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Sri. K.M.Sathyanatha Menon, learned counsel for the respondent submitted that if this court so directs, the respondent shall produce both the sons before this court, so that this court can ascertain their wishes.

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We have considered the rival submissions. We have gone through the impugned order. The submission of the learned counsel for the petitioner that the impugned order was passed without ascertaining the wishes of the children seems to be correct. In this context, we notice the order dated 29/2/2012 passed by this court. That order indicates that this court interacted with one of the two boys viz. Rathul and he expressed his view to be with the mother. A reading of the order further will show that this court did not become inclined to

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Mat. Appeal No. 132 /2011 3

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entrust the permanent custody of Rathul with the mother. This court thought that the issue ,as to whether the mother could be given the permanent custody of master Rathul, requires further probe. According to us, the paramount consideration in all matters pertaining to the custody of the minor children is the welfare of the minor. Relevant Section is Section 17 of the Guardians and Wards Act, which we quote as follows;

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“ 17. Matters to be considered by the

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Court in appointing guardian : (1). In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the

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law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

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(2). In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes,

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Mat. Appeal No. 132 /2011 4

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if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

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(3). If minor is old enough to form an

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intelligent preference, the Court may consider that preference.

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[xxxxxx]

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(5). The Court shall not appoint or declare

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any person to be a guardian against his will.”

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As indicated in the Section itself, while deciding as to

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what will be for the welfare of the minor, the court is expected to have regard to the age, sex , religion, character and capacity of the proposed guardian and his nearness of of kin to the minor, etc. etc. are relevant consideration. Section 17 (3) provides that if minor is old enough to form intelligent preference, the court may consider that preference. It is not the law that the decision is to be taken solely based on the preference of the minor when the minor is old enough to form an intelligent preference. The two minors, whose custody is in dispute before us, are school going boys aged 13 and 8. According to us while

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Mat. Appeal No. 132 /2011 5

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determining as to whose custody, whether the custody of the mother or custody of the father will promote the welfare of these minors, one of the relevant considerations will be the financial capacity of the proposed guardian to maintain the children properly and to give proper education to them to provide a healthy habitant where there is right atmosphere for the student to pursue their studies. On going through the impugned order, we find that a many consideration, which is relevant in appointment of guardian for minors, has not been considered.

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We are therefore inclined to remit this case back to the Family Court, Malappuram for fresh decision. Accordingly, we set aside the impugned order and remit I.A. No.1896/2012 in O.P.No.553/2009 to the Family Court, Malappuram. That

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court is directed to take a fresh decision in the I.A. Before taking decision, that court will ascertain the preferences of the two children separately. Parties are free to adduce evidence on all relevant aspects including their respective financial capacity, so that the court can come to a correct decision in the context of the paramount consideration which is welfare of the children. The court will pass revised order within three months of the

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Mat. Appeal No. 132 /2011 6

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parties entering appearance pursuant to this order. Till revised orders are passed as regards the custody, status quo as obtaining now will continue.

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Parties will enter appearance before the Family Court, Malappuram on 28/2/2013.

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Transmit the records forthwith to the Family Court, Malappuram.

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Sd/-

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PIUS C.KURIAKOSE, JUDGE Sd/-

P.D.RAJAN

JUDGE.

dpk

/True copy/ P.A to Judge.

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Mat. Appeal No. 132 /2011 7

Ranjini A.K. v. Rajan

Case brief

What is this about?

What did the court decide?

Ranjini A.K. v. Rajan

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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