Partly allowed

Ahammed Binshan v. Seenath

Kerala HC2 Aug 2013Mat.Appeal/675/2012

Case brief

AI extract

What is this about?

This matrimonial appeal challenged a Family Court order granting custody of a minor child to the mother. The High Court upheld the order recognizing changed circumstances and the mother's ability to provide better upbringing, but modified visitation terms to allow overnight custody when the father is in India.

What did the court decide?

The Family Court order is confirmed but modified to allow the appellant overnight custody of the child when he is in India during his scheduled weekly visit.

Ahammed Binshan Vs Seenath — 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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FRIDAY, THE 2ND DAY OF AUGUST 2013/11TH SRAVANA, 1935

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Mat.Appeal.No. 675 of 2012 ()

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APPELLANT(S)/RESPONDENT:

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AHAMMED BINSHAN

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S/O.KUNHEEDU, PUTHUKKIDI HOUSE, KOTTAKKAL POST TIRURANGADI TALUK, MALAPPURAM DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER KUNHEEDU, S/O.AYAMU, PUDUKKIDI HOUSE KOTTAKKAL P.O., MALAPPURAM DITRICT.

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

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RESPONDENT(S)/PETITIONER:

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SEENATH

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D/O.MUHAMMAD KUTTY NONDATH, NONDATH HOUSE CHAPPANANGADI, TIRUR TALUK, MALAPPURAM DISTRICT PIN-676101.

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RR1 BY ADV. SRI.K.K.MOHAMED RAVUF

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 02-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat. Appeal No.675/12

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APPENDIX

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APPELLANT'S EXHIBITS

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ANNEX-A:	COPY OF THE ORDER DATED 10-11-2009 IN O.P.NO.595/2009 OF
	THE FAMILY COURT, MALAPPURAM.

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ANNEX-B: COPY OF THE JOINT STATEMENT SUBMITTED IN O.P.NO.595/2009 BEFORE THE FAMILY COURT, MALAPURAM.

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ANNEX-C: COPY OF THE PETITION FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, MALAPPURAM AS I.A.NO.2590/2011 IN O.P.NO.595/2009 DATED 3-12-2011.

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ANNEX-D: COPY OF THE OBJECTION FILED BY THE APPELLANT DATED 3-9-2012 TO ANNEXURE C PETITION.

TRUE COPY

PA TO JUDGE.

acd

ANTONY DOMINIC & P.D. RAJAN, JJ.

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Mat. Appeal No.675 of 2012

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Dated this the 2^nd day of August, 2013

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JUDGMENT

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ANTONY DOMINIC,J.

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The appeal is filed against the order of the Family Court, Malappuram in I.A.No.2590/2011 in O.P.No.595/2009.

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The appellant and the respondent are divorced couple. The wife filed O.P.No.595/2009 before the Family Court, Malappuram for permanent custody of their minor child, 'Hisham'. During the pendency of the proceedings, Annexure-B joint statement was filed by the parties and on that basis, Annexure-A consent order was passed by the Family Court disposing of the O.P. In terms of Annexure-A order, initially the child was given in the custody of the mother and thereafter, the appellant father. While so, the wife filed I.A.2590/2011 before the Family Court seeking modification of Annexure-A order and permanent custody of the child. That prayer was objected by the appellant by filing Annexure-D petition. However, the Family Court, by its order dated 17.9.2012, accepted the contention of the wife that there was change of circumstances and directed the appellant to

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Mat.Appeal No.675/12 2

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handover full custody of the child to the wife. The respondent wife was also directed to produce the child before the Counsellor of the Family Court on first Saturday of every month and the appellant was allowed to see the child from 10 a.m. to 3.30 p.m. until further orders. It is this order, which is under challenge in this appeal.

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Admittedly, both the husband and wife have remarried after their divorce. The husband has a child in the second marriage also while the wife has no kids in the second marriage. Reading of Annexure-C, I.A.No.2590/2011 shows that, according to the wife, on account of his employment, the husband is always outside the country and as a result, the child was more in the custody of the aged grandparents. It was also her case that the child's welfare not being attended to. She had stated that her second husband is also abroad. But, she is free to look after this child also. She had also stated that her parents are also willing to look after the child. She has also explained about their economic status and also the availability of the facilities, which can be made use of the better education and welfare of the child.

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Taking note of all these facts that the Family Court has passed the impugned order. We cannot say that the factors which are urged by the wife in her petition were irrelevant or that the decision of the Family Court is illegal. We also informed that since

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Mat.Appeal No.675/12

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passing of the order, the child is in the custody of the mother and that she has admitted the child to a neighbouring English Medium School. Therefore, if, at this stage, we upset the order impugned, that will not be in the welfare of the child also. Therefore, we uphold the order of the Family Court. However, the husband has a grievance that, under the impugned order, he is allowed to see the child only during 10 a.m. to 3 p.m. on the 1^st Saturday day of every month and, according to him, at least when he is in the country, the child should be given to him for overnight custody.

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We do find some force in this contention. As we have already stated, the absence of the husband from the country is the reason for passing the impugned order. Therefore, when the appellant father is in the country, there is no reason to deprive the father for overnight custody of the child. In view of the matter, we modify the direction of the Family Court and direct that the respondent shall produce the child, when the husband is in India, during the 1^st Saturday of every month. It will be open to him to inform the same to the respondent and thereupon the respondent shall produce the child before the Counsillor of the Family Court at 10 a.m. Thereupon it will be open to the husband to take the child in his custody by retaining the child overnight and will return the child between 10 a.m.and 11 a.m. on the following Sunday.

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Mat.Appeal No.675/12

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Subject to the above modification, the order will stand

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confirmed.

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Mat. Appeal is disposed of accordingly.

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ANTONY DOMINIC, JUDGE

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P.D. RAJAN, JUDGE.

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acd

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Mat.Appeal No.675/12 5

Ahammed Binshan v. Seenath

Case brief

What is this about?

What did the court decide?

Ahammed Binshan v. Seenath

Case brief

What is this about?

What did the court decide?

What the court decided

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