IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 MFA.No. 24 of 2004() ------------------------------- OP.22/2000 of DISTRICT COURT, KASARAGOD .................... APPELLANT/(PETITIONER): ----------------------------------------- M.A. ABDUL HAMEED ALIAS HAMEED, S/O. LATE MOHAMMED KUNHI HAJI, RESIDING AT KODANKAL HOUSE, KALNAD VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. KALNAD. BY ADV. MR.D.KRISHNA PRASAD, MR.D.NARENDRANATH, MR.M.HARISHARMA, MR.T.P.ELDHOSE. RESPONDENT/(RESPONDENT): ---------------------------------------------- SAKHEENA, D/O. MOHAMMEDKUNHI, RESIDING AT CHETTUKUNDU, KEEKAN VILLAGE, HOSDURG TALUK, P.O. KEEKAN. BY ADV. MR.K.SHRIHARI RAO. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. Thottathil B.Radhakrishnan & P.S.Gopinathan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = M.F.A.24/2004 & C.M.Appl.409/2004 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of March, 2010. Judgment P.S.Gopinathan, J. 1.This is an appeal preferred by the petitioner in O.P.22/2000 on the file of the District Judge, Kasaragod, a petition seeking custody of the five children born out of the wedlock between the petitioner and the respondent. The learned District Judge dismissed the petition on finding that the welfare of the minor was very safe at the hands of the respondent and no circumstance revealed out to disturb the custody. As against the said order this appeal was preferred. 2.In filing the appeal there is delay of 6 days. It is stated in the affidavit accompanying the application that the petitioner was laid up and thus there occurred delay. No objection was filed by the respondent. Having heard the learned MFA24/04 -: 2 :- counsel on either side, we find that the petitioner-appellant had satisfactorily explained the delay in filing the appeal. Hence, we condone the delay. 3.It is submitted that the eldest two children had attained majority. This appeal was filed on 17.12.2004. By the passage of time, two out of five children had attained the majority. So, as regards those children who had attained majority the appeal has become infructuous. Though the learned District Judge had dismissed the petition, he had given liberty to the appellant to apply for and to have the interim custody of the children during the vacation or school holidays and also given liberty to file fresh petition for custody in the event of change of circumstances. The appellant had not sought for such custody till date. The conduct of the appellant being of such nature, and the appellant was given liberty to file fresh petition for MFA24/04 -: 3 :- custody as and when there is change of circumstances; and that the learned District Judge had considered all circumstances, including the welfare of minors and we having found no error in the order impugned, we find that it is not necessary to disturb the custody of the minor children at this long span of time. But, it would be appropriate to reiterate the aforesaid clause and to give liberty to the appellant to apply for interim custody or permanent custody in the event there is any change of circumstances and if so proposed by him. We find no merit in the appeal and the appeal is disposed with liberty to the appellant to apply for the interim custody of the children or to file fresh petition for custody as and when there is change of circumstances. Thottathil B.Radhakrishnan, Judge. P.S.Gopinathan, Judge. Sha/1603