IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 20142 of 2008(S) -------------------------- OPG&W.1531/2007 of FAMILY COURT,ERNAKULAM .................... PETITIONER(S): --------------- DR.SUDHEER SULAIMAN, AGED 37, 6 LAWSON WOOD COURT, MEANWOOD PARK,MEAN WOOD,LEEDS WEST YORKSHIRE, L S 6 4 RU, UNITED KINGDOM,PERMANENT ADDRESS AT FLAT NO.107,PRASSANNA VIHAR, ARMY FLAT, MARINE DRIVE EKM. REP.BY HIS P/A HOLDER SUSHEEL SULAIMAN, S/O.LATE MOHAMMED SULAIMAN, R/AT -DO-. BY ADV. SRI.PREMCHAND R.NAIR RESPONDENT(S): --------------- 1. NOMITHA ZIAUDDIN, AGED 29, D/O.ZIAUDDIN AHMED, RESIDING AT ZIANA, CHAKKARAPARAMBU ROAD, THAMMANAM P.O., ERNAKULAM DT 2. ZIAUDDIN AHMED, ZIANA, CHAKKARAPARAMBU ROAD, THAMMANAM P.O., ERNAKULAM DT 3. NAJUMA ZIAUDDIN, W/O.ZIAUDDIN AHMED, ZIANA, CHAKKARAPARAMBU ROAD, THAMMANAM P.O., ERNAKULAM DT. ADV. SMT.SARAH SALVY FOR R 2&3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.20142/2008 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the petition for permanent custody of the child filed by the petitioner. Ext.P2: True copy of the objection filed by the petitioner. RESPONDENTS' EXHIBITS: Ext.R1(A): True copy of the letter of Twalaq pronounced by the petitioner dated 21.12.2003 with certificate dated 24.05.2007 issued by Padamugal Mahallu Muslim Jama-Ath. Ext.R1(B): True copy of the letter issued by the petitioner to this 1st respondent in the month of September,2003. Ext.R1(C): True copy of the certificate issued by Dr. M.Chandrasekaharan Nair, Director, Head of Psychiatry, Nair's Hospital, Maradu, Ernakulam dated 06.11.2003. Ext.R1(D): True copy of certificate issued by Dr.P.G. Krishna Kumar, Consultant Psychiatrist, Ravipuram, Cochin-16. KURIAN JOSEPH & HARUN-UL-RASHID, JJ. --------------------------------------------------------- W.P.(C) NO. 20142 OF 2008 --------------------------------------------------------- Dated this the 21st day of October, 2008 JUDGMENT Harun-Ul-Rashid, J. This Writ Petition is filed seeking permanent custody of the minor child Nihal and to restrain the first respondent/mother from taking the minor child from Ernakulam to any other places including the United Kingdom and for other reliefs. 2. The marriage between the petitioner and first respondent was solemnised on 19.8.2001 and a son was born in the wedlock on 1.11.2002. Due to difference of opinion between the parties, they parted and started residing separately from June, 2003. Finding that the husband and wife could not live together and there was no chance for reconciliation, the petitioner effected talaq during December, 2003. The first respondent got remarried, but the petitioner remains unmarried. 3. The petitioner is a doctor by profession having practice in the United Kingdom. The first respondent married one Shiyas Basheer who is W.P.(C)NO.20142/2008 2 also a doctor practicing in the United Kingdom. Though the petitioner and first respondent got divorced in accordance with the religious rites, the parties started litigation for the custody of the minor child. The child is now aged six and is being taken care of by the first respondent/mother. The petitioner filed O.P.(Guardian) No.1531 of 2007 before the Family Court, Ernakulam for permanent custody of the minor child. The first respondent filed O.P.(Guardian) No.1570 of 2007 for the very same relief. She also filed O.P. No.554 of 2004 for return of money. The said Original Petition was allowed by the Family Court directing the petitioner herein/husband to pay Rs.12,00,000/- with 13% interest to the first respondent. Execution Petition is now pending. The first respondent also filed O.P. No.1569 of 2007 for a decree of divorce and the same is pending. It is not known for what reason such an Original Petition is filed as the parties have effected divorce as early as in 2003. The parties have admitted that divorce was effected on 21.12.2003. According to the first respondent, the said Original Petition was filed in order to get a document regarding legal divorce which was necessary for obtaining passport for the minor child. 4. The petitioner now seeks an early disposal of O.P.(Guardian) No.1531 of 2007 pending before the Family Court, Ernakulam. When this W.P.(C)NO.20142/2008 3 Writ Petition came up for admission, we issued notice by special messenger calling upon the parties to be present before us. We had interacted with the parties and held lengthy discussions with them. We are happy to note that the parties have agreed to settle all the disputes between them. Accordingly, both sides agreed to settle the monetary claim raised in O.P. No.554 of 2004. The first respondent agreed not to prosecute the execution petition now pending before the Family Court, Ernakulam and in lieu, the petitioner agreed to pay an amount of Rs.5,00,000/- to the first respondent within two years from today in full and final settlement of all monetary claims as against him. The petitioner also agreed that he shall pay maintenance to the child at the rate of 50 pounds per month on or before the 5th of every month. The said amount shall be credited to the account of the first respondent/mother. The petitioner has also agreed to pay Rs.30,000/- towards arrears of maintenance within a week from today. With regard to the custody of the child, the parties agreed that the custody of the minor child Nihal shall be with the first respondent/mother. It is further agreed that the petitioner/father can have temporary custody of the child for two days a month, three days each during Christmas and other holidays having a duration of one week and for a period of two weeks during summer holidays. This arrangement is intended to operate while the parties are in the United Kingdom. If the parties are in Kerala during any W.P.(C)NO.20142/2008 4 vacation, the first respondent/mother shall hand over the child to the petitioner/father for a period of two weeks. The temporary custody of the minor child for two days a month shall commence after three months. Till then, the petitioner can go and meet the child during day time and spend 3- 5 hours with him. In view of the settlement arrived at between the parties, we feel that there is no necessity to continue the cases pending before the Family Court, Ernakulam. Accordingly, O.P.(Guardian) No.1531 of 2007, O.P.(Guardian) No. No.1570 of 2007, E.P. in O.P. No.554 of 2004 and M.P. in M.C. No.117 of 2004 shall stand struck from the file of the Family Court, Ernakulam. If any modification is required by the parties due to change of circumstances, the parties are at liberty to approach this Court for appropriate orders. The Writ Petition is disposed of as above. (KURIAN JOSEPH) JUDGE (HARUN-UL-RASHID) JUDGE sp/ W.P.(C)NO.20142/2008 5 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. W.P.(C) NO. 20142/2008 JUDGMENT 21st October, 2008 W.P.(C)NO.20142/2008 6