IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 Mat.Appeal.No. 604 of 2007() ---------------------------------------- OP.2/2006 of FAMILY COURT,KOZHIKODE .................... PETITIONER: APPELLANT/RESPONDENT IN OP. 2/2006 ------------------- JISHA, AGED 29 YEARS, D/O.NARAYANAN NAIR, KIZHAKKETHAYYULLATHIL HOUSE, ANCHAMPEEDIKA, KARAYAD - POST, MEPPAYUR - VIA, KOYILANDY TALUK. BY ADV. SRI.T.R.RAVI SRI.P.S.MURALI RESPONDENTS: PETITIONER IN OP 2/2006 ------------------------ SHAJU P.KRISHNAN, AGED 36 YEARS, S/O.KRISHNAN NAIR, 'KRIPA', KOVOOR CHEVAYUR - POST KOZHIKODE. BY ADV. SRI.MANJERI SUNDERRAJ SRI.B.PREMNATH (E) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. -------------------------------------- Mat. Appeal No.604 OF 2007 ------------------------------------- Dated 6th March, 2008 JUDGMENT Koshy,J . Both husband and wife were present. It is reported that husband did not continue the counseling as directed by the counselor. The reason stated by the husband is that the counselor insisted him for a re-union, but, he is not interested in continuing the relationship even though it is stated by the wife that she wanted continuation of the relationship. It is true that husband filed a petition for restitution of conjugal rights earlier, but, according to the husband, he is against re- union now. It is also submitted that child is aged only seven years and is studying in first standard in the school where wife is teaching. On going through the order of the Family Court it is seen that Family Court only considered two aspects. One is father is the natural guardian. Second is that he is not unfit to look after the child. Even though father is the natural guardian, if the child is with the mother and she is capable of looking after the child, considering the emotional aspects and welfare of the child during tender age, mother can be entrusted with custody of the child. (See Lekha v. P.Anil Kumar (2006 AIR SCW 6358). In that Mat.A.604/2007 2 case, it was held that even a second marriage by mother will not disqualify the mother from having the custody of child (See also Kumar V. Jahgirdar v. Chethana Ramatheertha (AIR 2004 SC 1525). But, paramount consideration like welfare of the child was not considered. Education of the child, child's further custody etc. have to be looked into. Therefore, the matter should be reconsidered by the Family Court. The Family Court is bound to consider whether interest of the child is protected while entrusting the custody of the child to the father or mother. In this connection, we refer to the decision of the Apex Court in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka (AIR 1982 S.C. 1276). Therefore, the order of the Family Court is set aside and the matter is remanded for fresh consideration by the Family Court. It is for the Family Court to send for further counselling and try for a settlement. Evidence also should be adduced by both sides to show the paramount importance which is good for the child. Since there is dearth of evidence regarding the same, we remand the matter for further orders. Parties are allowed to adduce further evidence. Till further orders, child shall be kept with the custody of the mother. Interim custody of the child for some speriod during vacation etc. shall be considered by the Family Court Mat.A.604/2007 3 according to law. Impugned order of the Family Court is set aside. Appeal is allowed by way of remand. J.B.KOSHY JUDGE K.HEMA JUDGE tks