IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 Mat.Appeal.No. 427 of 2009() ---------------------------- OP.429/2008 of FAMILY COURT, MALAPPURAM .................... APPELLANT///PETITIONER(S): --------------- PUNNAKKATTU HIDAYATHULLA, AGED 33 YEARS, S/O ABOOBACKER HAJI, COLONY ROAD, NEDIYIRIPPE, KONDOTTY P.O., ERNAD TALUK, MALAPPURAM DISTRICT - 673 638 BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT/RESPONDENT: --------------- CHERUSSOLA SOUDATH, AGED 27 YEARS, D/O ABOOBACKER, KADUPURAM, KOOTTILANGADI P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT - 676 506 ADV. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.427 of 2009 ---------------------------------------- Dated this the 16th day of October 2009 J U D G M E N T Basant,J The appellant in this appeal assails the order passed by the Family Court turning down his prayer for custody of the minor child and granting him only visitorial rights. 2. The respondent is the divorced wife of the petitioner. The marriage took place in the year 1999. A female child by name Najma was born in the wedlock in 2000. In 2004, by unilateral pronouncement of talaq the marital tie was dissolved. It appears that an agreement was entered into after the divorce and an amount of Rs.2.17 lakhs was paid by the appellant to the respondent. There was also an agreement that maintenance at the rate of Rs.500/- per mensum shall be paid for the child by the appellant. Parties are Muslims. After the divorce, the appellant has re-married. A child is born in that wedlock. The respondent has not been remarried. 3. According to the appellant/petitioner continuance of the female child in the custody of the respondent/mother is not conducive to the best interests of the child. In these Mat.Appeal No.427/09 2 circumstances, he came to court with a petition claiming custody of his minor daughter aged 8 years born in the respondent. According to him, the respondent was leading an immoral life and continuance of the child in the custody of the respondent would adversely affect the welfare and future of the child. The appellant is employed abroad. He gets good income from his avocation as a Barber there. He is in a position to give better financial facilities to the child. He will be in a position to put the child to a better school and look after her better. At the time when the petition was filed, the appellant had come back to India on leave. He expected to go back to his place of employment after some time. It is at that juncture that he filed this petition. 4. The prayer was resisted by the respondent/mother. The respondent/mother stoutly denied the allegation that she was leading an immoral life. She did not dispute the fact that an amount of Rs.2.17 lakhs was paid to her at the time of divorce. She accepted that maintenance at the rate of Rs.500/- per mensum was being paid regularly by the appellant for the maintenance of the child. But she contended that disturbing the custody of the child now was not conducive for the best interest of the child. The child was residing with the respondent. The Mat.Appeal No.427/09 3 respondent has devoted her whole life for the child. She was working and earning to support the child. The meager amount of Rs.500/- sent by the appellant was insufficient for the maintenance of the child. The appellant was resorting to the present proceedings only to avoid the possible liability to pay enhanced maintenance. He has no acquaintance with the child. He has never, after the divorce, come to see the child at all. The appellant will not be available in India and the child will be left to the mercy of his second wife. In these circumstances, the respondent prayed that the petition may be dismissed. 5. Parties went to trial on these contentions. The appellant examined himself as PW1 and the respondent examined herself as RW1. They made assertions to support their respective contentions. Exts.A1 to A7 were marked. Ext.A4 series, Ext.A5 series and Ext.A7 are only documents to show remittance of the monthly amount of Rs.500/- as maintenance of the child by the appellant. Ext.A6 is a document to show that an L.I.C policy (Marriage Endowment/Educational Annuity) was taken by the appellant in the name of the minor child. Exts.A1 to A3 are relied on to contend that the respondent was leading an immoral life. Mat.Appeal No.427/09 4 6. The court below, on an anxious consideration of all the relevant inputs came to the conclusion that the custody of the child with the mother need not now be disturbed. The court below came to the conclusion that from the point of view of the welfare of the child as also the rights of the parties, the mother was entitled to keep custody of the child. However, the court accepted the offer of the appellant to pay enhanced maintenance at the rate of Rs.800/- per mensum and granted him visitorial rights. He was permitted to have the custody of the child from 9 a.m to 4 p.m on all Sundays when he was in India. The petition was allowed in part - to the above extent. 7. The appellant claims to be aggrieved by the impugned order. We have heard the arguments of the learned counsel for the appellant and the respondent. The learned counsel for the appellant contends that the court below must have granted custody of the child to the appellant. 8. There is no serious dispute on the question that the appellant has not been visiting the child after the divorce. It is admitted that he has re-married. He has re-married a cousin of his. A child has been born in the wed-lock. The respondent has a case that it is the intimacy between the appellant and the Mat.Appeal No.427/09 5 present wife that had prompted him to sever his relationship with the respondent and divorce her. According to the appellant, it was the immoral behaviour of the appellant that persuaded him to divorce her. Admittedly, at the time of divorce an agreement has been entered into and the reasons stated in the agreement for divorce is not any immoral behaviour on the part of the respondent; but only incompatible temperament. But Exts.A1 to A3 are pressed into service to contend that the wife was leading an immoral life. We have gone through Exts.A1 to A3. They clearly show that the incident referred to therein took place only after the divorce and not before the divorce. The case of the appellant that it is because of immoral behaviour revealed from Exts.A1 to A3 that he divorced the respondent thus falls to the ground. 9. We have gone through Exts.A1 to A3. That shows that the young discarded wife had developed intimacy with a neighbour and had gone along with him secretly apprehending that her people may not approve such relationship with him. They returned. They reported before the police. The action was closed by the police after satisfying themselves that no offence has been committed. The respondent denies these Mat.Appeal No.427/09 6 allegations. 10. For the sake of arguments we will assume that Exts.A1 to A3 can be accepted as gospel truth. The course of conduct adopted by the respondent as revealed from Exts.A1 to A3 may not be idle. But certainly we are of the opinion that that circumstance cannot lead us to the conclusion that she thereby forfeits the claim to continue to keep her minor child in custody. The attitude of the appellant cannot also be lost sight of. Admittedly, he had not visited the child thereafter. No attempt has also been made to have any visitorial rights for him in respect of the child. The maintenance amount which was agreed to be paid at the time of divorce is being paid even now without any enhancement. We take note of the contention of the respondent that it is when she made demands for enhancement of the maintenance amount through mediators that the present claim has been filed. That plea has not been substantiated. But it appears that no other specific reason has been advanced as to why the appellant has, at this juncture, come forward with a petition for custody. 11. The learned counsel for the respondent points out that the incident referred to in Exts.A1 to A3 is not the alleged reason Mat.Appeal No.427/09 7 prompting the appellant to come to court now as he had kept quiet for a period of three years after the said incident without taking any action. 12. Admittedly the appellant was working abroad at the time when the petition was filed. Even going by his evidence, his proposal was to leave the child with her step mother when he is not available in India. Of course, now the learned counsel for the appellant submits that the appellant is willing, to show his bona fides, to surrender his passport and remain in India along with the child if the Court would grant custody of the child to him. 13. Welfare of the child is the paramount consideration of the court while considering the question of custody of the children. But it may not be inapposite to look at the personal law which entitles the mother to keep custody of the child till the child attains puberty. A female child, undoubtedly at this juncture, requires the support and company of its mother. 14. Viewed from any angle, we are not persuaded to agree that the impugned order deserves interference invoking our appellate jurisdiction under Sec.19 of the Family Courts Act. We are satisfied that the impugned order deserves to be upheld Mat.Appeal No.427/09 8 and this appeal deserves to be dismissed. 15. The learned counsel for the appellant submits that at least the frequency of the visitorial rights may be increased now. We note that the court below has granted limited custody to the appellant on all Sundays from 9 a.m. to 4 p.m. If that arrangement works for some time and the child acclimatises herself with the father with felicity, certainly the appellant shall be at liberty to apply to the court below to modify the order and increase the frequency of such limited custody. Appropriate orders shall be passed by the Family Court on such application. We would like to make it clear that the offer by the appellant, and the acceptance of the same by the court below, to pay an amount of Rs.800/- per mensum will not in any way fetter the rights of the respondent to claim appropriate enforcement of the maintenance amount. 16. With the above observations, this appeal is dismissed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr Mat.Appeal No.427/09 9 Mat.Appeal No.427/09 10 Mat.Appeal No.427/09 11 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009