IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 Mat.Appeal.No. 92 of 2004() --------------------------- GUARDIAN WARD OP.25/2003 of I ADDL. DISTRICT COURT, PALAKKAD .................... PETITIONER(S): PETITIONER/APPELLANT: ------------------------------------ A. ABDUL NASIR, S/O. MOHAMMED MASTER, NHARUCHIRAKKALATHIL, CHERUKODE, OTTAPALAM. BY ADV. SRI.K.I.MAYANKUTTY MATHER SRI.PAUL ABRAHAM VAKKANAL RESPONDENT(S): RESPONDENT: -------------------------- SUBAIDA, D/O. MAMMUNNI, PALENGAL, ELEMKULAM, KUNNAKKAVU, CHERUKARA VIA., PERUNTHALMANNA, MALAPPURAM DISTRICT. ADV. SRI.K.MUHAMMED SALAHUDHEEN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1732/2004 IN MAT.APPEAL No.92/2004 CLOSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 23/10/2008 \\TRUE COPY// P.A TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Mat.Appeal No.92/2004-B ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23rd day of October, 2008. J U D G M E N T Raman, J. The appellant is the petitioner in a Guardian and Wards O.P.No.25/2003 on the file of the District Court, Palakkad. The appellant married the respondent sometimes in 1992 and three female children were born in that wedlock. The appellant thereafter realised that the respondent is a hysteric patient and treated her under various doctors for her psychic ailments. It is alleged that though the husband was very affectionate towards the wife, she had developed some immoral connection with a carpenter, who came for work in the house and were caught red handed on 09/11/2002. So the appellant pronounced Talak on the respondent on 10/11/2002. Subsequently, there was a mediation talk as per which the respondent agreed to give two children to the appellant and the third child to be retained with her until the age of seven. While the children were thus studying in school, they were forcefully taken into custody by the Mat.Appeal No.92/2004 -:2:- respondent on their way home from school. Complaints were made before the local police. It did not yield any result. As the custody was with the respondent, who was none other than the mother, the police did not interfere in the matter. Ultimately, seeking relief from the court, the appellant filed Guardian O.P. It is stated that he is a school teacher and he is able to maintain the children and bring them up. It is also stated that he is the natural guardian of the children being Muslim. He gave evidence as PW.1. Respondent, however, did not cross-examine the appellant nor did she adduce any evidence in the matter. Despite the situation being thus, the court below dismissed the petition for custody of the children, even after entering a finding that the appellant is the natural guardian. Further, it is also averred that even visitorial rights were not given to the father. Hence, this appeal. 2. The facts as stated above by the learned counsel for the appellant, Smt.S.Amina is very appealing initially but, the conduct of the appellant as revealed from the records would show otherwise. The specific averment of the counsel is that the appellant had married twice before he married the respondent. Even after pronouncing Talak on the respondent he married again, and is leading a happy life with his new wife. Mat.Appeal No.92/2004 -:3:- 3. It is true that the appellant is the natural guardian and, normally, the appellant could be given the custody of the children if that is the only criteria to be followed. But it is also settled that the children being female children in the interest of their welfare, temporary custody be with the mother until they reach a particular age. When the matter was posted before the Adalath, no interest as such was shown by the appellant. Not even an interim application is moved for producing the children or for interim custody while matter is pending before this Court. Even a visitorial right was not sought for, though more than five years have elapsed. Thus, it appears that both the appellant and the respondent have adapted to the situation and we do not want to disturb the present arrangement, especially, when the appellant has not shown any anxiety even to see his children. Further, now that the children, atleast the eldest daughter would be of 14 years and sufficiently grown up where there may not be any difficulty if actually the father wants to see his daughter. Be that as it may, we cannot however find any justification for the court below in not making any suitable orders regarding visitorial right of the father to see his children. Therefore, while confirming the orders passed by the court below, we direct that the appellant will be entitled to see his children once in every month at Mat.Appeal No.92/2004 -:4:- the residence of the respondent. The custody of the children being a matter which may change having due regard to the circumstances, if it is possible for the petitioner to point out any change in the circumstances entitling him to have the custody of the children, the dismissal of the appeal will not stand in the way of such right being invoked. The writ petition is disposed of as above. (P.R. Raman, Judge.) (T.R. Ramachandran Nair, Judge.) ms