Partly allowed

Merlin Abraham v. Francis K.Antony

Kerala HC2 Apr 2019Mat.Appeal/1176/2018

Case brief

AI extract

What is this about?

The High Court set aside the Family Court's order granting custody to the father, directing the original matter be remitted for fresh disposal after affording the mother an opportunity to prove her presence in India and reconsidering custody evidence.

What did the court decide?

The impugned order of the Family Court set aside; O.P. No. 120/2017 remitted for fresh consideration and disposal within three months after affording an opportunity to both parties.

Merlin Abraham Vs Francis K.Antony — Child Custody and Guardianship | Kerala HC (2019)

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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.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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TUESDAY,THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941

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Mat.Appeal.No. 1176 of 2018

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OP 120/2017 of FAMILY COURT, KALPETTA

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APPELLANTS/RESPONDENTS:

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1 MERLIN ABRAHAM,D/O.ABRAHAM, KANNATT, HOUSE 1ST MILE, KUPPADI POST, S.BATHERY TALUK WAYANAD DISTRICT.

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2 ABRAHAM,KANNATT, HOUSE, 1ST MILE KUPPADI POST S.BATHERY TALUK WAYAND DISTRICT.

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3 MARYKUTTY ABRAHAM,W/O.ABRAHAM, KANNATT HOUSE 1ST MILE, KUPPADI POST, S.BATHERY TALUK WAYANAD DISTRICT.

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BY ADVS. SRI.SIJI ANTONY SRI.P.S.SAJEEV (CHIRAYIL)

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RESPONDENT/PETITIONER:

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FRANCIS K.ANTONY,S/O.K.P.ANTONY KAKKANATT HOUSE, KARADIPPARA POST AMBALAVAYAL, S.BATHERY TALUK, WAYANAD.

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BY ADV. SMT.CELINE JOSEPH

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal.No. 1176 of 2018

JUDGMENT

K.Harilal, J.

The appellant herein are the respondents in O.P.No.120/2017 on the files of the Family Court, Kalpetta. The first appellant herein is the wife of the respondent. A male child was born in the said wedlock, on 20.11.2011. The ward is aged seven years and now studying in Std.II at St.Joseph's English Medium School, Sulthan Bathery and staying along with the mother and grandparents in the maternal home. The respondent filed O.P.No.120/2017 before the Family Court under Sections 7,12 and 25 of the Guardian and Wards Act, 1890, seeking the permanent custody of the minor ward. According to the respondent, the marital relationship between the first appellant and the respondent have broken down and thereafter the respondent was not permitted to meet the child. Minor son is desirous to come back and live with the respondent and he is longing for the care and company of the respondent. The appellants have deliberately tried to put an end to the father-son relationship and

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Mat.Appeal.No. 1176 of 2018

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attachment between the respondent and the child. The appellants resisted the said company contending that the respondent is a drunkard and if the minor child is allowed to go to the house of the respondent, it will adversely affect his future. The minor child is not interested in getting the company with the respondent. The appellants never objected the respondent from seeing or interacting with the child. The respondent is not giving maintenance allowance to the child. The child is now residing along with the appellants comfortably and peacefully. They prayed for rejecting the claim for interim custody.

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On the rival pleadings both parties adduced evidence and after considering the evidence on record the court below appointed the respondent as guardian of the ward and granted custody of the ward to the respondent with a visitation right alone. The legality and correctness of the said order is under challenge in this Matrimonial Appeal.

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Heard the learned counsel for the appellants and the learned counsel for the respondent.

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Mat.Appeal.No. 1176 of 2018

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Going by the impugned order it can be seen that at the

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time of filing the Original petition the first appellant had the custody of the child and permanent custody was changed and granted to the respondent on the sole ground that the first appellant is working in Gulf and in that circumstance the custody with the respondent father is just and proper for the welfare of the ward.

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The sum and substance of the arguments advanced by the learned counsel for the appellants is that in fact at the time of passing the impugned order the first appellant was in India and she had already resigned her job abroad and came to India with the sole object of looking after the minor ward.

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According to the learned counsel for the appellants the court below went wrong by drawing an adverse inference against the first appellant on the reason that she failed to produce the passport before the court to show that she is in India. On the other hand, the learned counsel for the respondent advanced arguments to justify the findings of the court below that the first appellant is

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out of India and she is working in Gulf country. So also, it is

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Mat.Appeal.No. 1176 of 2018

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contended that the court below can be justified in drawing an

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adverse inference in view of Section 114(g) of the Indian Evidence

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Act.

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In this appeal, the learned counsel for the appellant has

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produced the original passport before the Court, while arguing the case, for verification. The learned counsel for the appellant sought

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for an opportunity to produce the passport before the court below

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to prove the fact that she had already quit the job abroad, at the time when the impugned order was passed, to look after the child. Going by the impugned judgment, we find that the court below has drawn an adverse inference on the reason that when the first appellant was examined as RW1 she expressed her willingness to produce the passport before the court to show that she had already resigned her job in Gulf and left Gulf on 31.08.2018. But, she failed to produce the passport. We are of the opinion that the court below can be justified in drawing an adverse inference against the appellant

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when she agreed to produce the passport before the Court and subsequently failed to produce the passport before the Court.

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Mat.Appeal.No. 1176 of 2018

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However, we are of the opinion that the first appellant can be given an opportunity to prove her presence in India at the time of passing the impugned order. Consequently, the impugned order would stand set aside and the O.P.No.120/2017 is remitted to the Family Court, Kalpetta for fresh consideration and disposal after affording an opportunity to both parties to adduce further evidence. The Family Court shall pass order afresh at the earliest, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The parties shall appear before the Family Court, Kalpetta on 22.05.2019.

Sd/-

K.HARILAL

JUDGE

Sd/-

ANNIE JOHN

JUDGE

Merlin Abraham v. Francis K.Antony

Case brief

What is this about?

What did the court decide?

Merlin Abraham v. Francis K.Antony

Case brief

What is this about?

What did the court decide?

What the court decided

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