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 2ND JUNE 2011 / 12TH JYAISHTA 1933 OP (FC).No. 754 of 2011(R) -------------------------- OPGW.118/2011 of FAMILY COURT, KOTTARAKKARA .................... PETITIONER: -------------------- SHIBINA, D/O.ABDUL LATHEEF PUTHEN VEEDU, SASTHAMKOTTA PO, 690 521, KOLLAM DIST. BY ADV. SRI.V.VARGHESE RESPONDENT: --------------- SHIHAB, KALEEKKAL VEEDU, KAROORKADAVU, NORTH MYNAKAPPALLY, KUNNATHOOR TALUK, KOLLAM DIST. ADV. SRI.B.KRISHNA MANI FOR R1 THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(F.C) No.754 of 2011 R - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2011 JUDGMENT K.M. Joseph J., The petitioner challenges Ext.P1 order in proceedings under Article 227 of the Constitution of India. The petitioner is the wife of the respondent. The petitioner filed an Interlocutory Application as I.A. No. 400 of 2011 in O.P. (G.&W) No.118 of 2011. 2. The Family Court has directed the parties to maintain status quo with regard to the custody of the child awaiting further evidence and circumstances of the matter to make variation in the order, as the circumstance warrants. The respondent was granted time to file counter affidavit. 3. Various orders were passed in this O.P.(F.C). The child, a son, is aged nearly three years. W.P.(Crl.) No.754 of 2011 :2: 4. The Family Court has of course noted that the respondent has left for Saudi Arabia after one month of the marriage leaving the petitioner with her in laws. It is was also found that since the petitioner is admittedly not capable of maintaining herself, the custody at the hands of the respondent would be of more positive and suckle advantageous to the ward. Thereafter the Court has also noted that the respondent has desired to join the petitioner in spite of all various unpleasant happenings. It was ordered that she is free to join the respondent so that she was able to give breast feeding to the child. The Court also found the version of the petitioner not inspiring confidence. 5. The paramount consideration naturally in a matter relating to custody of the minor child is welfare of the child. As already noted the child is not yet three years of age. We can correctly describe the child as a child of tender age. The question relating to the interim custody is pending consideration in the O.P. filed by the petitioner and what we really consider in the original petition is temporary custody. W.P.(Crl.) No.754 of 2011 :3: 6. Though the parties were directed to reside together, they resided together for some time only. It did not work out. Of course the respondent has a version that it did not work out due to the fault of the petitioner. Whatever that may be, we would in the interest of justice feel that as a temporary measure that the child be left in the custody of the mother, namely the petitioner. Accordingly we set aside the interim order and we direct that custody of the child be given to the petitioner pending consideration of the matter in the Family Court. We have found truth in the contention of the respondent that the petitioner was not keeping custody of the child with herself for the considerable period of time and left the custody with her sister. However learned counsel for the petitioner would submit that the mother will indeed reside with the minor child. The petitioner who is also personally present would assure us that she will stay with the minor child and it is also pointed out that she is presently residing at Sasthamcotta with her minor child. Learned counsel for the petitioner would submit that for the time being the child be with the petitioner in the house at Sasthamcotta. Pending consideration of the matter before the Family Court, we also direct W.P.(Crl.) No.754 of 2011 :4: that the respondent will have the right to visit the child at the house at Sasthamcotta twice a week. But the respondent must give 24 hours notice over phone to the petitioner that he is proposing to visit the child in terms of this order. We make it clear that this is only a temporary arrangement. The Family Court will proceed to dispose of the O.P. untrammeled by anything contained in this order. The learned counsel for the respondent highlighted the health condition of the child and the learned counsel for the petitioner submits that the petitioner will indeed do the needful so that the child receives proper treatment. 7. Today the child is handed over to the petitioner by the respondent. 8. The O.P. (F.C) is disposed as above. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/