Dismissed

Riyas Aali @ Riyas v. Shamliya Baby

Kerala HC26 Nov 2019Mat.Appeal/936/2019

Case brief

AI extract

What is this about?

This matrimonial appeal challenged the Family Court's order granting permanent custody of a minor child to the mother with visitation rights to the father. The High Court upheld the order, finding it conducive to the child's welfare given the child's age, the mother's profession as a teacher, and the child's expressed wish. The appeal was dismissed.

What did the court decide?

Confirmed the Family Court's order granting permanent custody to the respondent with visitation rights to the appellant.

Riyas Aali @ Riyas Vs Shamliya Baby — 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 MR.JUSTICE C.S.DIAS

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TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941

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Mat.Appeal.No.936 OF 2019

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AGAINST THE ORDER/JUDGMENT IN OP 4/2017 DATED 29-07-2019 OF FAMILY COURT, MALAPPURAM

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APPELLANT/PETITIONER:

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RIYAS AALI ALIAS RIYAS, AGED 39 YEARS S/O.ABOOBACKER, PULIKKODAN HOUSE, KAMBALAKKALLU P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679 333.

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BY ADVS.

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SRI.P.SAMSUDIN SRI.M.ANUROOP SMT.S.K.SREELAKSHMY

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RESPONDENT/RESPONDENT:

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SHAMLIYA BABY, AGED 29 YEARS D/O.ASSAIN, KUDUKKENGIL HOUSE, SULTHANPADY, CHATHAMUNDA, PATHIRIPPADAM P.O., (NOW RESIDING AT MANALPADAM, KAMBALAKKALLU P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679 333).

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R1 BY ADV. SRI.P.VENUGOPAL (1086/92)

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal.No.936 OF 2019 2

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JUDGMENT

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C.S.DIAS, J.

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This appeal is filed challenging the order passed by the Family Court, Malappuram in O.P. No.4 of 2017, granting permanent custody of the child named Mishal P. Riyas, who is the son of the appellant and respondent, to the respondent, with visitation rights to the appellant on all alternative Sundays between 10.00 a.m. and 05.00 p.m.

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The appellant had filed the original petition, seeking permanent custody of his son, on the allegation that the respondent took away the child from him on 01.11.2015, stating that the child had to attend a scholarship examination.

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On enquiry, the appellant came to learn that the respondent took the child for a school tour, without his consent. Subsequently, on 17.11.2015, the respondent went to the house of the appellant and took away all her belongings. Thereafter, the marital relationship got strained and the parties are living separately.

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Mat.Appeal.No.936 OF 2019 3

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The respondent filed a written objection, refuting

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the allegations in the original petition and pleaded that she had already instituted other matrimonial proceedings before the Family Court.

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The appellant and one witness were examined as PW1 and PW2 and the respondent was examined as RW1.

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The learned Judge, after evaluating the pleadings and evidence on record and also after interacting with the child, came to the conclusion that, to secure the paramount welfare and best interest of the minor child, it was better that the respondent be granted the permanent custody of the child, who is of tender age. However, the Family Court granted the appellant visitation rights to visit the minor child at the house of the respondent on all alternative Sundays between 10.00 a.m and 05.00 p.m, which according to the learned Judge would give an opportunity to the child to enjoy the love and affection of his father also.

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Aggrieved by the direction, the above appeal is

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filed.

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Mat.Appeal.No.936 OF 2019 4

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Heard Sri.M. Anuroop, learned counsel for the

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appellant and Sri.P.Venugopal, learned counsel for the respondent.

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On a re-appreciation of the pleadings and evidence on record and also considering the fact that the child is only nine years of age and that the respondent is a teacher and that the child had expressed his opinion to continue to be in the consortium of his mother, we are of the opinion that it would be conducive for the paramount welfare and best interest of the child to continue to be in the custody of the respondent. We find no error in the impugned order granting permanent custody to the respondent and the appellant being granted visitation rights of his child on all alternative Sundays between 10.00 a.m. and 05.00 p.m.

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The learned counsel for the respondent contended that the appellant has now remarried and he has a child in the present wedlock. Considering the fact that the Family Court has ensured the welfare of the minor child by ordering the custody of the child to be with the

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Mat.Appeal.No.936 OF 2019 5

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mother, but reserving the visitation rights of the father, we do not think that there are any circumstances warranting interference with the present arrangement, that is ordered. However, the parties would be at liberty, in case of change of circumstances, to move appropriate application before the Family Court, seeking modification of the present visitation right arrangement ordered by the Family Court.

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In the result, the Mat.appeal is disposed of, confirming the order passed by the Family Court, Malappuram, with liberty to both parties to move the Family Court, Malappuram in O.P.No.4/2017, to seek for modification of the order granting visitation rights, in case there is any change of circumstance.

Sd/-

K.HARILAL, JUDGE

Sd/-

C.S.DIAS, JUDGE

ajt

Riyas Aali @ Riyas v. Shamliya Baby

Case brief

What is this about?

What did the court decide?

Riyas Aali @ Riyas v. Shamliya Baby

Case brief

What is this about?

What did the court decide?

What the court decided

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