IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 MFA.No. 38 of 2001() -------------------- OPGW.391/1999 of FAMILY COURT, MALAPPURAM .................... APPELLANT/RESPONDENT: ----------- RAZIYA MOL, D/O. VADAKKEVEETTIL KUNHOKKU, AZHINHILAM P.O., VAZHAYOOR, MALAPPURAM. BY ADV. SRI.V.G.ARUN RESPONDENT/PETITIONER: ------------- THAHIR KUNJU, SON OF KALATHINGAL ABU, KARUMARAKODE, VAZHAKKAD P.O., MALAPPURAM DISTRICT. BY ADV. SRI.PROMY KAPRAKKATT THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO.387 OF 2001 IN M.F.A. NO. 38 OF 2001. DISMISSED 2.4.2008 Sd/-(KURIAN JOSEPH, JUDGE) Sd/-(HARUN-UL-RASHID, JUDGE) KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- M.F.A. NO.38 OF 2001 ---------------------------------------------------------------- Dated this the 2nd day of April, 2008 JUDGMENT Harun-Ul-Rashid, J. This appeal is filed by the respondent/wife against the order passed by the Family Court, Manjeri in O.P. (G & W) No.391 of 1999. The Original Petition was filed at the instance of the father for custody of his child. The Family Court as per the impugned order gave custody of the child to the respondent/mother, but allowed the petitioner/father to take the child on alternate Sundays from 10 a.m. to 5 p.m. Aggrieved by the said order, the respondent/mother has come up in appeal. 2. The parties to this appeal are referred to as the petitioner and respondent as in the Original Petition. The marriage between the petitioner and respondent was solemnised on 11.2.1993. They are the parents of a female child named Hasna who is now aged 13 years. Two proceedings were pending between the parties earlier, for decree of divorce and for restitution of conjugal rights. The former case is at the instance of the respondent/wife and the latter by the petitioner/husband. The suits M.F.A. NO.38/2001 2 were withdrawn as a result of the settlement and agreement entered into between the parties. It is alleged by the respondent/wife that after the agreement, the petitioner/husband contracted a second marriage in 1999 with one Amina and has a child in that marriage. 3. The respondent/wife is a teacher. According to her, the distance between her residence and that of the petitioner is about 25 kilometers. She contended before us that the child is suffering from epileptic disorders and is undergoing treatment and that it is not conducive to the health of the child to travel long distance. She further contended that the petitioner/husband is not a man of good character and, therefore, granting custody of the child to him even for a limited period would spoil her career. 4. The Family Court noticed the fact that the child is studying in a school situated near the residence of her mother. The respondent is still unmarried whereas the petitioner has remarried and has a child in the second marriage. Considering all the attending circumstances, the Family Court ordered that the custody of the child shall be with the respondent/mother. The Family Court also concluded that for a healthy relationship between the father and the child, the petitioner/father can take M.F.A. NO.38/2001 3 the child on alternate Sundays from the custody of the mother and be with her from 10 a.m. to 5 p.m. 5. In the facts and circumstances of the case, we find that the view taken by the Family Court is just and proper and that the conclusions and findings arrived at are appropriate in the context of the case. After all, the father is with his own daughter only for a few hours. In the result, there is no merit in the appeal. The appeal is accordingly dismissed. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ M.F.A. NO.38/2001 4 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. M.F.A. NO.38/2001 JUDGMENT 2ND APRIL, 2008