Dismissed

Salini M.S. v. Sobhakumar

Kerala HC19 Aug 2013Mat.Appeal/20/2012

Case brief

AI extract

What is this about?

This matrimonial appeal concerns custody of a minor born of cohabitation, as no marriage existed between the parents. The court affirmed the Family Court's refusal to grant permanent custody to the father under Section 6(b) of the Hindu Minority and Guardianship Act, prioritizing the mother's status as the natural guardian and the child's welfare. The temporary custody order for the 2009-10 vacati

What did the court decide?

Both appeals were dismissed; original orders of the Family Court regarding permanent and temporary custody are upholds.

Salini M.S. Vs Sobhakumar — 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 ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN

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MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935

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Mat.Appeal.No. 20 of 2012 ()

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GOP.NO.285/2008 OF FAMILY COURT, THRISSUR DATED 04-06-2009

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APPELLANT/RESPONDENT :

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SALINI M.S., AGED 27 YEARS, W/O. PRASAD RESIDING AT PARVATHI VIHAR, KANIYARCODE.P.O TIRUWILLAMALA, THRISSUR DISTRICT.

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BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)

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RESPONDENT/PETITIONER :

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SOBHAKUMAR, AGED 40 YEARS, S/O. GOPINATHAN NAIR, MANIBHAVAN T.C NO. 3/2358, MARAPPALAM, PATTOM KOWDIYAR, THIRUVANANTHAPURAM - 695 004.

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 19-08-2013, ALONG WITH MAT. APPEAL NO. 946/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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...2/-

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Mat.Appeal.No. 20 of 2012 ()

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APPENDIX

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APPELLANTS ANNEXURES :

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ANNEXURE A : COPY OF THE I.A. NO. 1137/2013 IN MAT.APPEAL NO. 946/2009 IN I.A NO. 1312/13 FILED BEFORE THIS HON'BLE COURT.

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ANNEXURE A COPY OF IA NO. 1924/2013 IN G.O.P.NO. 285/2008 ON THE FILE IN I.A NO. 2175/13 OF THE FAMILY COURT, THRISSUR.

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ANNEXURE B COPY OF THE IA NO. 1309/2013 IN G.O.P. NO. 285/2008 FILED IN I.A NO. 1312/13 BEFORE THE FAMILY COURT, THRISSUR.

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ANNEXURE C COPY OF THE COUNTER IN I.A NO. 1309/2013 IN G.O.P IN I.A NO. 1312/13 NO. 285/2008 FILED BEFORE THE FAMILY COURT, THRISSUR.

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RESPONDENT'S EXHIBITS : NIL

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ANTONY DOMINIC & P.D.RAJAN, JJ

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Mat Appeal Nos. 946 of 2009 & 20 of 2012 ......................................... Dated 19^th August, 2013

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JUDGMENT

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ANTONY DOMINIC, J

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Both the appeals arise from order passed by Family Court, Thrissur as G.O.P.No.285 of 2008. The said O.P was filed by the appellant in M.A.No.946 of 2009 seeking permanent custody of the minor child, Vigneswar.

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The admitted facts of the case are that the parties, who are common in these two appeals, are that there is no marriage between them but they were living together during the period 2003-2007. It is also admitted that during that period, a minor child, Vigneswar was born on 20.3.2004.

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Subsequently, difference of opinion arose between the parties and according to the lady, who is the appellant in Mat Appeal 20 of 2012, she confessed her miseries to one Prasad who eventually married her in November, 2007. Since then, they, along with the minor child, are residing at Thrissur. It was while so that the father of the child filed G.O.P.No.285 of 2008 seeking an order for appointing him as a guardian of the child and for his permanent custody.

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ma 20/12 & conn.

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Before the Family Court, on behalf of the father, himself

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and another witness were examined as Pws 1 and 2 and the lady was examined as RW1. Exts.A1 to A6 and B1 to B7 were marked by both sides. Finally, Family Court, under the impugned order, declined the prayer of the father to appoint him as the guardian of the minor and for his permanent custody. However, it was ordered that he shall be granted temporary custody of the minor child for 15 days from 15^th April to 30^th April, during annual vacation. It is challenging this order of the Family Court, the father has filed Mat Appeal No.946 of 2009, while the lady has filed Mat Appeal 20 of 2012 objecting temporary custody that was ordered.

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We heard the learned counsel for the parties and have also gone through the records of the case. As far as the claim of the father for permanent custody of the minor child is concerned, as we have already noticed, admittedly there is no marriage between the parents. It is also the admitted position that even prior to the cohabitation and birth of the child, father was already married and was having a grown up child in that marriage. Further, under Section 6(b) of Hindu Minority and Guardianship Act, 1956, the mother is the natural

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ma 20/12 & conn. 3

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guardian of the child in question. That apart, Prasad, the husband of the lady has married her knowing fully well about the child and there is nothing on record to show that the child is not looked after by the mother and her husband. According to the father, he is a business man with sound financial position and the mother does not have any income of her own. As rightly pointed out by the Family Court, financial soundness of one of the parties alone cannot be the criterion while deciding on the over all welfare of the minor, which itself is a settled legal position, is the prime consideration in a matter of this nature. In such circumstances, we are not prepared to think that Family Court has committed any illegality in concluding that the welfare of the minor will be subserved better if the minor is allowed to be with his natural guardian, his mother.

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In so far as Mat Appeal 20 of 2012 is concerned, as we have already stated, what is objected by the mother is the order that temporary custody of the minor child be given to the father during 15^th April to 30^th of April during annual vacation. This order was passed by Family Court on 4.6.2009. What the order says is that the father shall be granted

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ma 20/12 & conn.

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temporary custody of the minor child “ for 15 days ie from 15^th

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April to 30^th April during annual vacation”. This order does not say that such arrangement will continue every year until otherwise ordered or that it is of a permanent nature. Therefore, we are inclined to think that this order had its effect only during the succeeding annual vacation and not any time thereafter. Such being the purport of the order and as annual vacation for 2010 is already over, we do not see any reason to go into Mat Appeal 20 of 2012 filed by the mother.

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In such circumstances, we do not find any merit in both the appeals and the appeals are therefore dismissed.

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ANTONY DOMINIC, JUDGE

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P.D.RAJAN, JUDGE

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lgk

Salini M.S. v. Sobhakumar

Case brief

What is this about?

What did the court decide?

Salini M.S. v. Sobhakumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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