IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 MFA.No. 39 of 2009() -------------------- O.P. NO.519/2008 OF FAMILY COURT, MALAPPURAM. APPELLANT(S): --------------------- SAJEERA P, AGED 23 YEARS, D/O. MAHMOOD, PALLIYALIL, GREEN MAHAL, KUTTIPURAM AMSOM, KUTTIPURAM DESOM, TIRUR TALUK, MALAPPURAM. BY ADV. SRI.K.J.SAJI ISAAC RESPONDENT(S): ------------------------ MUHAMMED BUKHARI, AGED 26 YEARS, S/O. SAITHALAVI HAJI, THAYYIL HOUSE, ATHAVANAD AMSOM DESOM, P.O. ATHAVANAD, TIRUR TALUK, MALAPPURAM. ADV. SRI.K.RAMACHANDRAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.No. 39 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of March, 2009. JUDGMENT BASHEER, J, Appellant is the mother of a very tender girl child aged one and a half years. She impugns the order passed by the Family Court in a petition filed by the father of the child for her custody. The operative portion of the impugned order passed by the court below reads thus: “In the result, O.P. is allowed in part directing the respondent to hand over the custody of the child to the father from 9 am to 1 pm on all Sundays provided he will take the feeding child from the wife's house and will return the child very safely before expiry of the time allotted.” 2. When this appeal came up for admission, this court had granted interim stay of operation of the above order. 3. On March 13, 2009, when the appeal came up for consideration, this court had directed the husband and wife to appear before the Psychologist attached to Dhanya Nursing Home at Edappally, Kochi. Ms.Anitha, Advocate, as member of this Bar, was also requested to interact with the parties. M.F.A.39/2009. 2 4. Dr.Prakash Chandran Arackal, Psychologist, after interacting with the husband and wife on six days between 13th and 20th March, 2009 has filed his report. In his report the Psychologist has stated that “after the counselling sessions with the parties separately, jointly and along with the family members, Mr.Muhammed Buhari (husband) and his mother reported that they are not interested in continuing the marriage relationship with Ms.Sajeera” (wife). 5. The Psychologist is of the view that six months regular follow up and professional help may be necessary to sort out their family problems. But the husband and his family members are not ready for this course of action and they insisted for divorce, whereas the wife and her family members are prepared to continue the relationship. 6. The appellant is present in court with the child. Her husband is also present. Both of them are very young and in their mid twenties. 7. We have interacted with the parties. The appellant submitted before us that she will not raise any objection if her husband wants to visit the child. But her only concern is that she wants to go back to Dubai, where her parents are settled. Her brother is also studying in Dubai. She further states before us that her husband has got a business in Dubai and he visits Dubai quite often, though his father is managing the business. M.F.A.39/2009. 3 According to her, the respondent can visit the child if he chooses to do so, in Dubai. In the alternative it is further suggested by the appellant that she is prepared to come down to Kerala once in three months, so that the respondent can see the child here in Kerala itself. She points out that the present arrangement as ordered by the Family Court will cause great inconvenience not only to the child, but to her also. She is even now breast feeding the child. The direction issued by the learned Judge to hand over the custody of the child to the respondent on all Sundays for four hours is totally unworkable. It will cause great stress on the child also. We find considerable force in the above contention raised by the appellant. 8. We have carefully perused the order passed by the learned Judge. The respondent/husband had alleged that the appellant is a lunatic. But the learned Judge in his order has observed that after recording evidence in the case not only the respondent, but his counsel also have no such false belief or notion about the appellant. Curiously, the learned Judge further observed that going by the oral evidence of the spouses before the court, he has no hesitation to conclude that the wife is having better I.Q. than the husband. Undoubtedly this may not and need not have any bearing on the question of custody of a child. It is equally true that every parent is entitled to get visitorial right or custody of his/her child, as the case may, so M.F.A.39/2009. 4 that he/she can give parental care, love and affection to his/her dear one. But every such right is based on certain obligations and duties; either marital or parental. Here is a wife, who is prepared to sacrifice her personal likes and dislikes to see that her child gets the love and care of its father. But unfortunately, the husband appears to be a Doubting Thomas. He infact alleged before the Psychologist that his wife is having an extra marital relationship. He stated before us that he cannot live with her and that there is a “very wide gap” between him and his wife. He also stated that he wants divorce from her. At the same time he says that he wants to see the child very often. He is aware that the parents of his wife are settled in Dubai and that she cannot live alone in Kerala. But he is not prepared to continue the marital relationship also. 9. Having regard to the peculiar facts and circumstances of this case, particularly the very tender age of the child, we are of the view that the present arrangement as ordered by the court below is infact impracticable and unworkable. This arrangement will cause great stress and strain not only on the young child, but on the mother also. Therefore, in our view, the order passed by the court below is liable to be set aside. We do so. 10. But in view of the undertaking given by the appellant in her affidavit dated February 12, 2009 before this court, we make it clear that M.F.A.39/2009. 5 the appellant shall not raise any objection if the respondent wants to visit the child once in a week in Dubai. Appellant shall, as undertaken by her, hand over custody of the child for three hours once in a week in her house at Dubai. If the respondent is not in a position to visit Dubai, the appellant shall take the child to Kerala once in three months and during her stay, she shall allow the respondent to see the child once in a week for three hours on any day to be agreed between the parties. 11. We make it further clear that we have passed this order considering the very tender age of the child, who is even now being breast fed. Of course, it will be open to the parties to approach the Family Court at a later stage for appropriate orders if the situation so warrants. The appeal is allowed. A.K. BASHEER, JUDGE P. BHAVADASAN, JUDGE sb.