Allowed

Rasha v. Ajmal

Kerala HC29 Sept 2021Mat.Appeal/204/2015

Case brief

AI extract

What is this about?

This matrimonial appeal challenged the Family Court order granting permanent custody of two minor children to the father. The High Court set aside the lower order, noting the children's preference for the mother and lack of evidence regarding parental capacity or misconduct. It awarded permanent custody to the mother with periodic visitation rights for the father.

What did the court decide?

Appellant awarded permanent custody of two minor children; Father granted custody on every second Saturday from morning to Sunday evening and during summer holidays for ten days with prior communicati

Rasha Vs Ajmal — Child Custody and Guardianship | Kerala HC (2021)

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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WEDNESDAY, THE 29^TH DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943

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MAT.APPEAL NO. 204 OF 2015

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AGAINST THE ORDER DATED 25,11,2014 IN OP 517/2012 OF FAMILY COURT, MALAPPURAM

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APPELLANT/1ST RESPONDENT:

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RASHA

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D/O.SAYYED ABDUL SALAM, KOLATHODI HOUSE, AMBALAPPADY, PUTHALAM, AREACODE (PO), MALAPPURAM 673639

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BY ADV SRI.K.PRAVEEN KUMAR

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RESPONDENTS/PETITIONER/2ND RESPONDENT:

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1 AJMAL, S/O.MOIDEEN, EDALOLI HOUSE, NELLIPPARAMBA, MANJERI, MALAPPURAM 676123

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2 JUNISE.V.T S/O.AHAMEDKUTTY VT, KATTUMUNDA, MAMPAD, NEDUVATH (PO), MALAPPURAM 679328

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.204/2015

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Dated this the 29th day of September, 2021

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A.Muhamed Mustaque,J.

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This appeal is filed at the instance of the mother of two minor children born in the wedlock with the 1st respondent. The children were born on 27.10.2004 and 12.1.2006. The marriage with the 1st respondent ended in divorce through Court on 26.7.2011 in O.P.No. 362/2011. Thereafter, the appellant married the 2nd respondent in accordance with personal law. The dispute regarding the custody of children arose subsequent to such marriage. The 1st respondent have approached the Family Court, Malappuram for permanent custody of the children. The children at that time were with the mother, the appellant herein. The

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Family Court allowed the custody petition and directed the appellant to

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Mat.Appeal No.204/2015

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hand over two children to the 1st respondent-father. The mother was

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retained overnight custody for one full day in the second week of every

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month. She was also permitted to see the child from the house of the 1 st

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respondent. Similarly, the appellant-mother was allowed to have custody

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during school vacation. Challenging this, the appellant has approached this

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court.

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2. On 1/7/2019, this court passed the following order:

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“I.A.No.2162 of 2018

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This application is filed seeking interim custody of the children. Going by the impugned order under challenge, we find that the petitioner is given interim custody of the children in every month. Therefore, no fresh order need be passed in this respect, particularly when the operation of the impugned order is not stayed in this appeal.

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The petitioner is at liberty to execute the order under challenge. Hence, this I.A would stand dismissed. Mat.Appeal No.204 of 2015

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The first respondent appeared in person before this Court and sought time to engage a lawyer for him.

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Two weeks time is granted to engage a lawyer.

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Post after two weeks for disposal.”

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Mat.Appeal No.204/2015

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In this matter, though the 1st respondent entered appearance

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on earlier occasion, thereafter he remained absent. We have only the advantage of hearing the learned counsel for the appellant alone.

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It is submitted by the learned counsel for the appellant that children are with the mother-appellant for the last two years and the 1 st respondent occasionally visited the children. In the absence of any other version discrediting or contradicting his submission, we have to accept the same.

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The children are nearing majority. They have attained the age of discretion. While the Family Court interacted with the children, they expressed their desire to be in the company of the mother. However, the Family Court noted two important factors to give custody to the father. First one is the employment of the mother as well as professional engagement of step father, the 2nd respondent herein being an Advocate. Thereafter, Family Court opined that no one will be at home to take care of the children. The Second reason that weighed the Family Court is the alleged elopement of appellant with the 2nd respondent. The Family Court after adverting to the above reasons found that 1st respondent's parents who were retired from educational department would be in a better

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Mat.Appeal No.204/2015

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position to take care of the minor children. The comparative evaluation of the capacity of the mother and father would be normally necessary to give the custody of the children. However, Family Court overlooked the fact that the appellant's mother was also available at home to take care of the children. Merely because the 1st respondent's parents are retired from the service of Educational Department cannot outweigh the care and protection that could have been accorded by the mother of the appellant. In the absence of forming an opinion that the mother of the appellant is incapacitated to take care of the children, the Family Court could not have arrived at a conclusion merely referring to the educational qualification of the parents of the father. It is to be noted that appellant is also well educated and nothing adverse exists in the homely environment of the appellant to deprive her the custody.

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We do not know how the Family Court came to a conclusion that the appellant eloped with the 2nd respondent. According to the learned counsel for the appellant, their marriage was an arranged one and performed in accordance with the personal law. The court may not adjudge the case from the perspective of the moral evaluation that may not have any immediate concern with the welfare of the children. Assuming a

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Mat.Appeal No.204/2015

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situation of eloping and how it would have affected the moral well being of the children should be the concern of the Court. Any way, there was no evidence before the court to conclude so. We therefore set aside the observation and finding in the impugned order.

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The Family Court had occasion to interact with the children. The children expressed that they are comfortable with the mother. In such situation, the Family Court ought to have allowed the mother to retain the custody of the minor children and allowing cyclic custody or intermediate custody with the father. Joint parental care should be the concern for the court. unless the court forms an opinion that the other parent is incapacitated to take care of the children for any reasons.

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We therefore set aside the impugned order. The mother is allowed to keep permanent custody of the children. However, the father is permitted to have custody of the children on every Second Saturday from morning to following Sunday evening every month. The father also would be entitled for custody during summer holidays for a period of ten days. The father shall communicate the date during which he can have the custody of the children to the mother in advance. The father is also allowed to contact the children through WhatsApp video call, whenever he wants.

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Mat.Appeal No.204/2015

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In the light of the discussion as above, we allow this appeal. The

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impugned order is interfered and modified to the extent as above.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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DR. KAUSER EDAPPAGATH

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JUDGE

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kp True copy

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P.A. To Judge

Rasha v. Ajmal

Case brief

What is this about?

What did the court decide?

Rasha v. Ajmal

Case brief

What is this about?

What did the court decide?

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