IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 OP (FC).No. 1091 of 2011(R) ------------------------------------- I.A.Nos.187/2010 & 1488/2010 in OP.429/2008 of FAMILY COURT, MALAPPURAM .................... PETITIONER (S): ------------------------ PUNNAKKATTU HIDAYATHULLA, AGED 33 YEARS, S/O.ABOOBACKER HAJI, COLONY ROAD, NEDIYIRUPPE, KONDOTTY P.O., ERANAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.JOMY GEORGE SRI.SEBASTIAN THOMAS RESPONDENT(S): ------------------------ CHERUSSOLA SOUDATH, AGED 27 YEARS, D/O.ABOOBACKER, KADUPPURAM, KOOTTILANGADI PO., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-676121. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 30/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP FC 1091 OF 2011: PETITIONER'S EXHIBITS: EXT.P1.TRUE COPY OF THE FIR DATED 1.3.2005 OF MALAPPURAM POLICE STATION. EXT.P2.TRUE COPY OF THE FINAL REPORT SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM IN CRIME NO.113/2005 DATED 10.3.2005. EXT.P3.TRUE COPY OF THE JUDGMENT IN MATRIMONIAL APPEAL NO.427/2009 DATED 16.10.2010 PASSED BY HONOURABLE HIGH COURT. EXT.P4.TRUE COPY OF THE COMMON ORDER DATED 6.1.2011 IN THE INTERLOCUTORY APPLICATIONS NOS.187/2010 AND 1488/2010 IN OP.NO.429/2008 PASSED BY THE FAMILY COURT, MALAPPURAM. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ O.P.(FC) No.1091 of 2011-R ---------------------------------------------- Dated, this the 30th day of June, 2011 J U D G M E N T K.M.Joseph, J. Petitioner challenges Ext.P4. Petitioner is the applicant in I.A.Nos.187/2010 and 1488/2010 in O.P.No.429/2008 on the file of the Family Court, Malappuram. The above OP was filed by the petitioner for the custody of the minor girl aged 10 years from the respondent. The Family Court by order dated 23.9.2008 granted limited custody of the child on all Sundays from 9 A.M to 4 P.M. The petitioner appealed by filing M.A.427/2009. This Court by by judgment dated 16.10.2009 dismissed the appeal reserving the right of the petitioner to approach the Family Court for modifying the order. Thereafter petitioner filed I.A.No.187/21010 for altering the arrangement ordered in OP.No.429/2008dated 23.9.2008 and I.A.No.1488/2010 for the full custody of the daughter. The Family Court disposed of the I.As. allowing custody of the daughter to the petitioner from 9 A.M to 4 P.M on all Saturdays and Sundays whenever the petitioner is available in person in his house and he has to take the child from and return her to the house of the respondent provided he continues to pay maintenance at the rate of Rs.800/- OPFC 1091/2011 -2- per month. According to the petitioner, he was working abroad and during the said time respondent was leading an immoral life. There is an agreement executed. According to him, the child is being brought up without protection and care. Petitioner relies on Ext.P1 which is the FIR produced to indicate that the respondent was living with a man and her family members had filed a complaint for man missing before the police. Ext.P2 is the copy of the report. Petitioner filed O.P.429/2008 and the Family Court passed order limiting custody and the petitioner preferred appeal culminating in Ext.P3 judgment of this Court. 2. According to the petitioner, there is a fall in educational standard of the child. We notice that at paragraph 8 the Court has found as follows: “The reason for the fall in the grade of the child last year is also seen rightly pinpointed by the Head master in Ext.A5 (b) namely the fight between her parents before various courts for her custody. The evidence of Pw1 and Rw1, in the circumstances, also probabilises the same to be the only reason for the fall in her academic grades last year. Now she has improved. Hence the question of giving full custody to the father for that reason does not arise at all.” 3. Moreover, the court has granted relief to the petitioner by allowing custody of the daughter to the petitioner father from 9 A.M to 4 P.M on all Saturdays and Sundays OPFC 1091/2011 -3- whenever he is available in house. This is because the respondent/mother has started to go for a job in a Photostat shop. 4. We must remind ourselves that this a petition under Article 227. It cannot considered as an appeal. There can be no re-appreciation of the matter. We do not think that it is a perverse order. In fact, the court has granted relief to the petitioner and custody is given to the petitioner father from 9 A.M to 4 P.M on all Saturdays and Sundays in modification of the earlier order. We do not see any jurisdictional error committed by the Family Court. No doubt orders of custody of child can be modified provided circumstances exist. We see no reason to interfere with Ext.P4. Accordingly, the Original Petition is dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS