IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 Mat.Appeal.No. 1011 of 2009() ----------------------------- OP.359/2009 of FAMILY COURT, THIRUVALLA .................... PETITIONER(S): APPELLANTS/PETITIONERS --------------------------------------------------------------- 1. K.K.HASSAN RAWTHER, AGED 64, CRESCENT VIEW, KONNAMONKARA, ADOOR P.O., PATHANAMTHITTA. 2. S.FATHIMA BEEVI, AGED 61 YEARS, W/O.K.K.HASSAN RAWTHER, CRESCENT VIEW, KONNAMONKARA, ADOOR P.O., PATHANAMTHITTA. BY ADV. SRI. S.A. RAZZAK RESPONDENT(S): --------------- S.ABDUL AZEEZ (DR.), AGED 35 YEARS, S/O.SUBAIR KUNJU, VENCHAMBI, CHEKKAKONAM P.O., NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT. E-MAIL IDS-ABDUL AZEEZ(SAAZEEZ2004@YAHOO.CO.IN) & (SAAZEEZ2004@GMAIL.COM). ADV. SRI.P.K.IBRAHIM THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- Mat. Appeal No.1011 of 2009-D ------------------------------------------------- Dated this the 8th day of June, 2010 JUDGMENT Basant,J. The maternal grandparents of a minor by name `Naureen Abdul Azeez` are the appellants in this Mat. Appeal. They are aged 64 years and 61 years respectively. The minor child is aged 11 years (date of birth : 14/4/1999). The respondent herein is the father of the minor child. The mother of the minor child Anjana Hassan got married to the respondent herein on 14/5/1998. Even though there was unilateral pronouncement of talaq by the respondent on 27/10/2002, the marital tie appears to have continued - evidently by resumption of co-habitation. The marital tie was put an end to under Ext.B1 agreement of divorce entered into between the spouses on 09/04/2006. In the said agreement, the following stipulations regarding custody of the child appear in paragraphs 4 and 5. Mat. Appeal No.1011 of 2009 -: 2 :- “4. The parties will continue to have all rights and obligations in law relating to their daughter Naureen A.Azeez and it is made clear that this agreement of divorce will not in any way prejudicially affect the interests of the minor child who is now aged 7 years and is in the custody of her maternal grandmother at Adoor in Kerala. 5. Subject to what is agreed herein above the 1st party shall have the right to see the female child at any time and can have her custody during the holidays and that the minor child shall not be taken out of Kerala by either party without specific consent of the other party.” 2. As per the stipulations in Ext.B1, the child continued to be in the custody of the grandparents at Adoor. The respondent, that is the father of the child, had taken up employment abroad and he resides at Saudi Arabia. He has re- married and has two children born in such latter wedlock. 3. The mother of the child Anjana Hassan went to U.S in search of employment. She, after divorce, has contracted a Mat. Appeal No.1011 of 2009 -: 3 :- second marriage with her present husband Mohammed Rafi by name. That marriage took place on 03/11/2006 (notwithstanding the innocuous typist's devil in the petition which showed the date of marriage as 11/03/2006 - it is submitted that following the practice in the U.S, the date and month of re-marriage appear in the reverse order). The child continued to be educated here in Kerala living with her grandparents. It is submitted that the mother of the child Anjana Hassan has become pregnant in the second marriage and has now given birth to a male child. 4. It is at this juncture that the grandparents went before the Family Court with an application to appoint the mother of the child and her step father as joint guardians to enable them to take the child to U.S to continue her education. To enable the mother and the step father to take the child to U.S, they had applied for U.S visa and they were directed by the officials to get an order of court showing the mother to be the legal guardian entitled to custody and the step father to be the joint guardian. It is accordingly that O.P.(G&W) No.359/09 was filed before the Family Court, Thiruvalla. 5. The petitioners/grandparents submitted that they were becoming old. They are not able to effectively manage the Mat. Appeal No.1011 of 2009 -: 4 :- affairs of the minor child. The child was growing. The child is likely to attain puberty shortly. The child requires the care and custody of its mother at this juncture and in any view of the matter, the mother was in the best position to act as the guardian and keep custody of the child. To satisfy the demand of the visa officials, the step father was shown as the proposed joint guardian. He expressed his consent to so act by filing Ext.A16 joint declaration along with his wife. 6. Service could not expeditiously be effected on the respondent and this obliged the petitioners/appellants to come before this court with W.P.C.No.20687/2009 for directions regarding service. Necessary interim directions were issued as per order dated 23/7/2009 and the matter was finally disposed of by judgment dated 20/8/2009. Later, the respondent came before this court with a review petition. By order dated 02/11/2009, the said review petition was also disposed of. Copies of these orders/judgment are produced as Annexures 1,3 and 5 along with this appeal. The appellants submitted that in the interests of the educational requirements of the child emergent orders were necessary. Considering the need for emergent and expeditious disposal, time bound directions were Mat. Appeal No.1011 of 2009 -: 5 :- issued by this Court. 7. The efforts to effect service appear to have borne fruit and a learned counsel appeared before the court below on behalf of the respondent on 22/09/2009. In compliance with those directions, the Family Court finally proceeded to pass the impugned order on 11/11/2009. The petition filed by the grandparents was dismissed by the impugned order. Aggrieved by that order, the grandparents have preferred this appeal. 8. After the passing of the impugned order, O.P.(G & W) No.35/2010 was filed by the respondent herein before the Family Court, Thiruvalla claiming custody of the child for himself. By order dated 23/3/2010 in I.A.No.437/2010, this Court (another Bench) had stayed the further proceedings in the said O.P. 9. Before us, the learned counsel for the appellants/grandparents and the respondent/father have advanced their arguments. The learned counsel for the appellants submits that the Family Court did not realistically take into consideration the interest of the minor child. It is a girl child. The girl has not attained puberty yet. She has completed the age of 11 years, she having been born on 14/4/1999. At this stage of life of the minor child, the minor child badly needs the Mat. Appeal No.1011 of 2009 -: 6 :- company and presence of her mother. The court below proceeded to dismiss the application without taking note of the plight of the appellants/grandparents, the situation in life of the minor child as also the inability of the appellants, persons of advanced age to effectively manage and look after the minor child. 10. The learned counsel for the respondent, on the contrary, submits that the conclusion of the court below and the impugned order rejecting the application is absolutely justified. According to the learned counsel for the respondent, the respondent did not get effective opportunity to advance his case before the Family Court. He was denied reasonable opportunity to adduce evidence in support of his case. This has resulted in great prejudice and hardships to the respondent. The respondent, in these circumstances, has filed O.P.(G&W) No.35/10. The learned counsel for the respondent prays that the impugned order may be set aside and the court below may be directed to dispose of the matter afresh in accordance with law. The learned counsel further prays that after remand, the court below may be directed to dispose of the O.P. along with O.P. (G&W) No.35/10 giving all the contestants adequate opportunity Mat. Appeal No.1011 of 2009 -: 7 :- to plead and establish their respective case. 11. We have considered the detailed submissions made by both counsel. We do not think it necessary to express our final opinion on the contentions raised. We are satisfied that directions must be issued to the court below to dispose of the matter afresh after setting aside the impugned order. We find merit in the contention that the respondent has not been given effective opportunity to substantiate all his contentions. Interests of justice, we are satisfied, shall be served ideally by issuing appropriate directions for fresh disposal of the O.P. along with O.P.(G&W) No.35/10. 12. We take note of the submissions of the learned counsel for the appellants that though the mother of the child was sought to be arrayed as an additional petitioner by filing I.A.No.3056/09, the said application was dismissed by the court below. We are not satisfied with the reasons shown for the rejection of the said prayer for impleadment of the mother of the child as 3rd petitioner are sufficient or justified. We are satisfied that the said petition deserves to be allowed. The mother of the child must be permitted to get impleaded. Accordingly, we set aside the order in I.A.No.3056/09 and direct the court below to Mat. Appeal No.1011 of 2009 -: 8 :- implead the mother of the child Anjana Hassan as the additional 3rd petitioner and give her opportunity to raise all her contentions and adduce evidence. It is admitted that in O.P. (G&W) No.35/10 filed by the respondent, the mother of the child has been arrayed as respondent and in these circumstances, we are satisfied that it is only fair and reasonable, in the interests of proper and effective resolution of the dispute and disposal of the petitions, that the mother must be permitted to come on record as the additional 3rd petitioner in the O.P. 13. One question remains to be considered. What arrangements are to prevail till the O.Ps. are disposed of afresh by the court below? We had requested the counsel to advance arguments on this aspect. The learned counsel for the appellants submits that there is immediate necessity to pass interim orders regarding the guardianship and custody of the minor child. Its grandparents, who have been keeping the child in their custody as acknowledged under Ext.B1, have expressed their inability to effectively manage and look after the child now. The learned counsel for the appellants submits that even prior to Ext.B1 the child was in their custody. Be that as it may, that dispute does not appear to be too relevant for the present Mat. Appeal No.1011 of 2009 -: 9 :- context. The child, as we have already noted, has passed the age of 11 years and the on set of puberty is expected. The learned counsel for the appellants argues and we agree that, at this juncture, in the life of the minor child she needs the care, custody and patronage of her mother the most. When the mother is available and there is no disqualification for the mother, we are unable to locate a person more competent to keep the custody of the child than the mother of the child. 14. The learned counsel for the respondent submits that the mother had never taken care of the child; that she had left the child with the maternal grandparents of the child; she has only been visitor to the child on occasions and that she has admittedly got re-married to a stranger. Counsel argues that if the mother is appointed as the interim guardian entitled to keep the custody of the child and take the child to the U.S., the child will virtually have to remain under the protection of the stranger step-father. It is further contended that in that event the right of the natural guardian - the respondent father, to effectively supervise the development of the child will also be frustrated. The learned counsel for the respondent further argues that the child will be exposed to totally alien culture and that would be Mat. Appeal No.1011 of 2009 -: 10 :- disadvantageous to the development of the child. The learned counsel for the respondent goes one step further and argues that there is no legal marriage between the mother of the child and Mohamed Rafi with whom she resides. We have incidentally referred to this contention as we note that even in the counter statement such re-marriage of the mother of the child is practically conceded. We find no merit in that contention at this stage, considering the state of the pleadings. 15. The court below, unfortunately we note, had relied upon the circumstance that the minor child's wishes were not ascertained. It was for the court to ascertain the wishes of the minor child. A court which had not wanted to ascertain the wishes of the child is not justified in using it as a ground against either party to deny the claim of custody. Taking note of the said observations in the impugned order, we wanted the child to be produced before us. We have interacted with the child and we are convinced and satisfied that the child wants to be with its mother. That informed choice of the minor aged above 11 years shall also weigh with us while considering what arrangements should be made till the O.Ps. are disposed of afresh. Mat. Appeal No.1011 of 2009 -: 11 :- 16. The learned counsel for the respondent offers to keep the child in his custody and do the needful as the guardian in custody. According to him, he was always willing to take the child in his custody and the grandparents with whom the child continues under Ext.B1 had never informed him of any inability on their part to effectively manage the child. He raises a further grievance that he was not given opportunity to interact sufficiently with the child on earlier occasions. He has admittedly raised no such grievance before any one prior to the filing of the petition. 17. The learned counsel for the appellants submits that immediate arrangements are to be made regarding the custody of the child as the schools are to re-open shortly in the U.S. and any further delay is likely to interrupt the educational curriculum of the child. Till the child is taken by its mother to the U.S., the appellants agree to look after and keep the custody of the child. It is submitted that the maternal grandmother of the child also proposes to go with the child to the U.S. and is expected to be with the child and its mother for a long time. 18. Having rendered our very anxious consideration to all the relevant facts and circumstances, we are certainly of the Mat. Appeal No.1011 of 2009 -: 12 :- opinion that the interests of the welfare of the child will be best served by entrusting the interim custody of the child to the mother of the child Anjana Hassan subject to appropriate terms and conditions. The fact that she has remarried is, according to us, by itself not a sufficient ground to reject her claim for interim custody. That the father is the natural guardian is also not reckoned by us as a sufficient reason to entrust the child to the custody of the father. He admittedly is employed abroad. He admittedly has re-married and he has two children in such later wedlock. We have taken note of the wishes and informed preferences of the child also. We have looked at the question from the point of view of the educational requirements of the child. Above all, we take note of the fact that the child, who is likely to attain puberty within a short period of time, deserves to be in the custody of her mother notwithstanding the fact that the mother has contracted re-marriage after divorce and has a child in such wedlock. The status and position of the mother as a qualified Doctor employed abroad is not disputed also. 19. In the result: (a) This appeal is allowed in part. Mat. Appeal No.1011 of 2009 -: 13 :- (b) The impugned order is set aside. (c) The court below is directed to dispose of O.P(G&W) No.359/09 afresh. (d) The court below is directed to dispose of O.P.(G&W) No.359/09 by holding a joint trial along with O.P. (G&W) No.35/10. (e) I.A.No.3056/09 is allowed and Anjana Hassan – the mother of the minor child, is directed to be impleaded as the additional 3rd petitioner in O.P.(G&W) No.359/09. (f) The court below shall dispose of O.P.(G&W) No.359/09 and O.P.(G&W)No.35/10 afresh after giving the parties full opportunity to amend their pleadings, file the requisite statements and adduce all further evidence. (g) As the father and the mother of the child are abroad, the court below shall post the case in such manner as to give reasonable opportunity to both the father and the mother of the child to come to India and adduce appropriate evidence. Reasonable time shall be given to both sides to the extent possible. The convenience Mat. Appeal No.1011 of 2009 -: 14 :- of the parents of the child shall be ascertained and they shall be given effective opportunity to appear and give evidence. As effective interim arrangements are made, time bound directions for disposal are not being issued. We have taken note of the grievance of the respondent that such time bound direction, notwithstanding the clarification in the order dated 2/11/09 in the Review Petition, has resulted in miscarriage of justice. (h) The court below shall dispose of the matter afresh untrammelled by any observations/findings in the impugned order or the expressions of opinion made by us in order to ascertain the person most suitable to keep the interim custody of the child. In short, the matter must be disposed of afresh as a totally fresh matter by the court below. (i) Until the O.Ps. are disposed of afresh, we direct that the mother of the child - Anjana Hassan shall function as the interim guardian entitled to the custody of the child. She will be entitled to take the child to her place of residence in the U.S. She shall undertake Mat. Appeal No.1011 of 2009 -: 15 :- to produce the child before the Family Court during all annual vacations. During such annual vacations when the child is in India, the respondent/father shall be permitted to have interactions with the child. Appropriate directions from time to time can be given by the Family Court regarding the custody/visitorial rights of the child during such vacations. (j) Before taking the child out of India, the mother of the child Anjana Hassan shall execute a bond for Rs.3 lakhs (Rupees Three lakhs only) with two solvent sureties each for the like sum to the satisfaction of the Family Court undertaking to abide by the directions to be issued by the Courts from time to time regarding the custody of the child. (k) Needless to say, such directions shall be issued only consistent with the educational requirements of the child and taking into account the availability of the respondent in India during the relevant time. The mother of the child shall inform the respondent/his counsel about the vacation during which the child can be brought to India. The respondent shall inform the Mat. Appeal No.1011 of 2009 -: 16 :- mother of the child through counsel about the time that the respondent shall be available in India. Appropriate directions can be sought from the Family Court about the date on which the child is to be brought to India and the manner in which the expenses for the same has to be met by the parties. (l) Original passport of the child is admitted to be in the custody of the father. He shall surrender the same before the Family Court immediately – at any rate, within a period of 15 days to enable the Family Court to hand it over to the interim guardian so that arrangements can be made to take the child to the U.S. as already directed. It shall be open to the parties to apply for and get return of the original passport produced before the Family Court immediately. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan //true copy// P.S. to Judge