Quashed

Mohammed Rashid. M.P v. Fathima.K

Kerala HC26 Oct 2022Mat.Appeal/112/2022

Case brief

AI extract

What is this about?

On an appeal against dismissal of a custody petition under the Guardian and Wards Act, the High Court quashed the lower court order for failing to examine pleadings. It ordered a rehearing on merits while modifying the interim visitation rights to Fridays.

What did the court decide?

Impugned order quashed; matter remanded to Family Court for fresh proceedings; visitation rights modified to Fridays.

Mohammed Rashid. M.P Vs Fathima.K — Child Custody and Guardianship | Kerala HC (2022)

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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WEDNESDAY, THE 26^TH DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 MAT.APPEAL NO.112 OF 2022

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AGAINST THE ORDER IN O.P (G&W)No.269 OF 2017 DATED 17.08.2021 IN THE FILE OF THE FAMILY COURT, TIRUR

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APPELLANTS:

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1 MOHAMMED RASHID.M.P AGED 35 YEARS S/O.MOHAMED M P, MANNUPARAMBIL HOUSE, THIRUNAVAYA AMSOM, KARATHUR DESOM, KODAKKAL POST, AJITHAPPADI, THIRUNAVAYA VILLAGE, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676108.

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2 AMINA K. P. AGED 51 YEARS W/O.MOHAMED M P, MANNUPARAMBIL HOUSE, THIRUNAVAYA AMSOM, KODAKKAL POST, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676108.

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BY ADVS. MUHAMMAD RASHID.M.P., (PARTY) Anila K S.KRISHNALAL(K/000510/2005)

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RESPONDENT:

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FATHIMA.K AGED 51 YEARS D/O.HAMSA HAJI, KAVUMPURATH HOUSE, KUNDAMCHINA, KURUGA POST, KALPAKANCHERY VILLAGE, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676551.

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BY ADVS. AJMAL V. A. A.C.ARFANA FATHIMA V.A.

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.112 of 2022

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J U D G M E N T

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Ajithkumar, J

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The petitioners in O.P (G&W) No.269 of 2017 on the file of the Family Court, Tirur are the appellants. They filed that original petition under Section 7(1) and 8 of the Guardian and Wards Act, 1890 seeking custody of and visitation rights to his minor child Aisha Diyana M.P aged 6 years. On 17.08.2021, the Family Court dismissed that original petition recording as follows:

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“It is reported that there is no oral evidence. Nor any documents. O.P.269/17 dismissed."

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The petitioners challenge legality of the said order

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in this appeal.

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This appeal was admitted to file on 14.02.2022. Notice was served on the respondents and they entered appearance through counsel. When this matter came up for consideration on 14.07.2022, this Court passed the following order:

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The learned counsel for the appellant handed over the D.D for Rs.30,000/- (Rupees Thirty Thousand only) to

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Mat.Appeal No.112 of 2022

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the respondent. It is acknowledged that the respondent received this without prejudice to the claim for entire arrears, if any. We allow the 2^nd appellant to have the visitation right of the child on every second and fourth Saturdays from 10 am to 1 pm from the premises of the Family Court, Tirur. The 1^st appellant also accorded for the visitation of the child during the above time, if he comes down from abroad.”

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

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O.P(G&W) No.269 of 2017 was filed by the petitioners seeking custody of the child. The 1^st appellant is the father and the respondent is the mother. Their marriage was already dissolved. The child is now aged 6 years. When a parent or for that matter any person interested in the welfare of a child approaches the court seeking custody, the court is

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cast with an obligation to consider as to what is the best interest of the child and how best welfare of the child can be ensured. It is necessary to decide with whom among the

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Mat.Appeal No.112 of 2022

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parents or such other claimants the custody of the child is to be entrusted. For that the court can hold enquiry even suo motu . If parties fail to furnish necessary materials, the court

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can, in the exercise of the parens patriae jurisdiction, hold enquiry and arrive at an appropriate decision to safeguard the interest of the child.

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When the Family Court dismissed the original petition holding that no evidence was let in by the parties, without looking into the pleadings and ascertaining as to what shall be the appropriate course that ensures the best interest of the child, the order becomes illegal. Therefore the impugned order dated 17.08.2021 is liable to be set aside.

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The matter has to be decided afresh by the Family

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Court after affording an opportunity to adduce evidence and hearing both parties. The interim arrangement regarding the visitation right of the appellants as ordered by this court on 14.07.2022 will continue for the time being subject to a modification that instead of Saturdays, the appellants shall have visitation right on Fridays. It is for the Family Court to consider whether any change is required regarding interim

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Mat.Appeal No.112 of 2022

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custody and visitation right taking into account changes in the

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circumstances, if any.

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Sd/-

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ANIL K.NARENDRAN JUDGE

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Sd/P.G. AJITHKUMAR JUDGE

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Mohammed Rashid. M.P v. Fathima.K

Case brief

What is this about?

What did the court decide?

Mohammed Rashid. M.P v. Fathima.K

Case brief

What is this about?

What did the court decide?

What the court decided

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