Partly allowed

Absin Abdulkhader v. Nufaila K

Kerala HC1 Apr 2024OP (FC)/706/2023

Case brief

AI extract

What is this about?

High Court of Kerala disposed of a writ petition challenging an interim custody order. The Court modified the Family Court order, directing the mother to hand over the child to the father on all Saturdays by 10 a.m. and returning the child to the mother by 4 p.m. on the following Sunday.

What did the court decide?

Order modified to direct mother to hand over child to father on all Saturdays by 10 a.m. and return by 4 p.m. next Sunday.

Absin Abdulkhader Vs Nufaila K — Child Custody and Guardianship | Kerala HC (2024)

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INTHEHIGHCOURTOFKERALAATERNAKULAM
PRESENT
THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV
&
THEHONOURABLEMR.JUSTICEP.M.MANOJ
MONDAY,THE1STDAYOFAPRIL2024/12THCHAITHRA,1946

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OP(FC)NO.706OF2023

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ORDERDATED18.05.2023INIANO.10/2023INIANO.2/2022IN
OPNO.1801OF2022OFFAMILYCOURT,KOZHIKODE

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PETITIONER/RESPONDENT/FATHER OF MINOR CHILD:

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ABSINABDULKHADAR
AGED30YEARS
S/OABDULKHADAR,KANIV,VADAKKEDATHTHAZHAM,PALATH
P.O.,CHELANNURVILLAGE,KOZHIKODE,PIN-673611

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BYADVS.
GEOPAUL
C.R.PRAMOD
S.ASHOKKUMAR.
JACOBGEORGEPALLATH
NAVEENT.U.
HARIKRISHNANA.S.
SOHAILAHAMMEDHARRISP.P.
AKSHAI.K.R.

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RESPONDENT/PETITIONER/MOTHER OF MINOR CHILD:

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NUFAILAK
AGED32YEARS
D/OMUHAMMEDSALINAHA,M6/40HOUSINGCOLONY,
MALAPPARAMBAP.O,CHEVAYURVILLAGE,KOZHIKODE,
PIN-673009

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BYADVS.
K.SHIBILINAHA
A.LOWSY(K/000914/2002)
SRINATHC.V.(K/003014/2022)
GAYATHRIRAJAGOPAL(K/002596/2023)

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THISOP(FAMILYCOURT)HAVINGCOMEUPFORADMISSION
ON01.04.2024,THECOURTONTHESAMEDAYDELIVEREDTHE
FOLLOWING:

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O.P.(FC) No.706 of 2023

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JUDGMENT

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Raja Vijayaraghavan, J.

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This writ petition is filed challenging Ext.P6 order dated 18.05.2023 in I.A No.10 of 2023 in I.A No.2 of 2022 in O.P No.1801 of 2022 on the file of the Family Court, Kozhikode. By the aforesaid order, the interim custody of the minor daughter was granted to the mother and further directions were issued to the petitioner/mother to hand over the custody of the child to the respondent at 10 am on the 1st and 3rd Saturday of every month and to return the child back by 4 p.m. on the following Sunday.

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2. Short facts are under:-

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For the sake of ease and clarity, the parties shall be referred as father, mother and child. The petition was filed by the mother before the Family Court seeking guardianship of the minor girl child. Admittedly, at the time of filing of the petition, the child was in the custody of the father. The learned Family Court, after considering the facts and circumstances, came to the conclusion that there was no compelling reason to deny the right of the mother to have interim custody.

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O.P.(FC) No.706 of 2023

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Reliance was also placed on the observations made by the Apex Court in Yashita Sahu¹ . By Ext.P3 order dated 23.12.2022, the interim custody of the minor was granted to the mother from 5 pm every Friday to 11 am of the following Monday until further orders. Later, an application was filed as I.A No.10 of 2023 by the mother seeking to modify Ext.P3 order. The learned Family Court took note of the fact that the minor child was just about 3 ½ years of age and being a girl, the care and protection of the mother would be more beneficial to the child. Holding so, the interim custody of the child was handed over to the mother and further directions were issued to the mother to grant custody of the child to the father on every 1st and 3rd Saturday at 10 am and to return the child to the mother on the next day at 4 pm.

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Sri. Geo Paul, the learned counsel for the petitioner, submitted that Ext.P6 order cannot be sustained under law. There was no drastic change of circumstances after the passing of Ext.P3 order to pass an order in the nature of Ext.P6. It is submitted that the paramount welfare of the child was not considered while passing the order.

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Sri.K.Shibili Naha, the learned counsel appearing for the

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respondent, submitted that the mother is the most suitable person to have custody of a minor girl child and no interference is warranted.

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1 Yashita Sahu v. State of rajasthan [2020 (1) KLT 1045 (SC)]

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O.P.(FC) No.706 of 2023

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After arguing for some time, the learned counsel appearing for the petitioner submitted that the grant of custody only on alternate Saturdays every month is quite unjustified. According to the learned counsel, the child is not an inanimate object and it requires the love and affection of both the parents.

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We have carefully considered the submissions advanced and have gone through the impugned orders. We find that the child is under five years of age and the mother is not having any disability or disadvantage to have custody of the child. As rightly observed by the learned Family Court, the care and protection of the mother will be in the best interest of the child and we find no reason to interfere with the said finding. However, we are of the view that limiting the custody to the father on alternate Saturdays is liable to be interfered with. We are of the view that the order can be modified and the mother can be directed to hand over the custody of the child on all Saturdays by 10 am to the respondent father and the custody of the child can be given back to the mother by 4 pm on the following Sunday.

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In that view of the matter, this petition is disposed of by modifying the order passed by the Family Court in I.A No.10 of 2023 in I.A No.2 of 2022 in O.P No.1801 of 2022 and there will be a direction to the petitioner-mother to hand over the custody of the child on all Saturdays

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O.P.(FC) No.706 of 2023

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by 10 am to the respondent father and the custody of the child can be given back to the mother by 4 pm on the following Sunday.

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Sd/-

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RAJA VIJAYARAGHAVAN V JUDGE

Sd/-

P.M.MANOJ JUDGE

IAP

O.P.(FC) No.706 of 2023

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APPENDIX OF OP (FC) 706/2023

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PETITIONER’S EXHIBITS:

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ExhibitP1TRUECOPYOFTHEOP1801/2022FILEDBYTHE
RESPONDENTATTHEFAMILYCOURTATKOZHIKODE
ALONGWITHITSENGLISHTRANSLATION
ExhibitP2TRUECOPYOFTHECOUNTERFILEDBYTHE
PETITIONERHEREININOP1801/2022ALONG
WITHITSENGLISHTRANSLATION
ExhibitP3TRUECOPYOFTHEORDERDATED23-12-2022BY
THEHONOURABLEFAMILYCOURT,KOZHIKODEIN
IA2/2022INOP1801/2022
ExhibitP4TRUECOPYOFTHEIA10/2023INIA2/2022OF
OP1801/2022FILEDBYTHERESPONDENT
SEEKINGMODIFICATIONOFCUSTODY
Exhibit5TRUECOPYOFTHECOUNTERFILEDBYTHE
PETITIONERINIA10/2023OFIA2/2022INOP
1801/2022ALONGWITHITSENGLISH
TRANSLATION
ExhibitP6TRUECOPYOFTHEORDERDATED18-05-2023OF
THEHONOURABLEFAMILYCOURT,KOZHIKODEIN
IA10/2023INIA02/2022OFOP1801/2022

Absin Abdulkhader v. Nufaila K

Case brief

What is this about?

What did the court decide?

Absin Abdulkhader v. Nufaila K

Case brief

What is this about?

What did the court decide?

What the court decided

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