IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 MFA.No. 239 of 2001(A) ---------------------- OP.289/1998 of PRINCIPAL DISTRICT COURT, THALASSERY .................... APPELLANTS/RESPONDENTS IN THE O.P.: ----------- 1.K.RATNAVALLY, D/O. LATE BALAKRISHNAN NAMBIAR, AGED 32 YEARS, RATHNALAYAM, P.O. TEMPLE GATE, THALASSERY -2. 2.K. DEVAKI AMMA, W/O. LATE BALAKRISHNAN NAMBIAR, AGED 70 YEARS, RATHNALAYAM, P.O. TEMPLE GATE, THALASSERY -2. BY ADVS. SRI.P.K.VIJAYAN SMT.K.V.JAYALAKSHMY RESPONDENT/PETITIONER IN THE O.P.: ------------- R.M. RAMACHANDRAN, S/O. KANNAN NAIR, AGED 40 YEARS, RAYAROTH HOUSE, KAYALOOR P.O., CHAVASSERRY, KANNUR DISTRICT. BY ADV. SRI.A.PARVATHI MENON THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO.2637 OF 2001 IN M.F.A. NO. 239 OF 2001. DISMISSED 3.4.2008 Sd/-(KURIAN JOSEPH, JUDGE) Sd/-(HARUN-UL-RASHID, JUDGE) KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- M.F.A.NO. 239 OF 2001 ---------------------------------------------------------------- Dated this the 3rd day of April, 2008 JUDGMENT Harun-Ul-Rashid, J. This appeal is filed against the order dated 15.12.2000 in O.P. No.289 of 1998 on the file of the Principal District Court, Thalassery. The first respondent/wife and her mother are the appellants. The Original Petition was filed at the instance of the father for custody of his minor son, Rahul. By the impugned order, the court below granted custody of the child to the father holding that the father being the natural guardian appeared to be more suitable than the ailing mother. Aggrieved by the above order, the mother and grandmother of the child have come up in appeal. 2. The parties to this appeal are referred to as the petitioner and respondents as in the Original Petition. The parties got married on 29.4.1991. It is alleged by the petitioner that the first respondent/wife is an M.F.A. NO. 239/2001 2 epileptic patient and that on 26.8.1998, the second respondent and her two sons came to his house and forcefully took away his wife and minor child to their house in a jeep. The petitioner contended that the first respondent has no means to maintain the child and being sick, she cannot look after the child properly. The petitioner is employed and according to him, he has sufficient means to maintain the child. 3. The respondents denied the averments in the petition. It is averred in the counter that the petitioner used to ill treat the first respondent and that due to continuous ill treatment, the epilepsy she was suffering from considerably increased and it reached a stage of mental disorder. According to the respondents, they are looking after the child and he is studying in St. Mary's L.P. School, Thalassery. It is further averred in the counter that the first respondent/mother being an ailing woman, the presence of the child is necessary and that if custody of the child is given to the petitioner/father, it will affect the mental and physical health of the child and might spoil his career. 4. Before the court below, the petitioner was examined as PW.1 and Exts.A1 to A7 were marked. The respondent and another witness were examined as CPWs.1 and 2 and Exts.B1 to B11 were marked. The court M.F.A. NO. 239/2001 3 below after considering the respective contentions and evidence found that it is just and proper to give custody of the child to the petitioner/father, being the natural guardian and more suitable than the ailing mother who is suffering from epilepsy. 5. It is an admitted case that the child was with both the parents till 28.6.1998. The court below noticed that the first respondent/mother had no source of income and that she was being maintained by her mother, the second respondent who is an aged lady. Therefore, the learned Judge came to the conclusion that the welfare of the minor child will not be safe in the hands of the mother and considering all the attending circumstances gave custody of the child to the petitioner/father. In the facts and circumstances of the case, we find that the view taken by the Family Court is just and proper and that the conclusions and findings arrived at are appropriate in the context of the case. At the same time, the first respondent/mother shall have full freedom to visit the child and be with the child provided such visits do not affect his studies. The first respondent is also at liberty to take the child to her house at least once in a month. The petitioner shall take the child to the house of the first respondent at 10 a.m. on the first Saturday of every month and take the child back at 6 p.m. The child can be with the mother for three days each during Onam and Christmas M.F.A. NO. 239/2001 4 holidays and for a period of two weeks during summer vacation. The appeal is disposed of with the above modification. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ M.F.A. NO. 239/2001 5 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. M.F.A.NO.239/2001 JUDGMENT 3RD APRIL, 2008