IN THE HIGH COURT OF KERALA
P.R. RAMACHANDRA MENON, ANIL K. NARENDRAN, JJ.
SOBHANA NAIR - Appellant
Versus
SHAJI S.G. NAIR - Respondent
OP (FC) No. 497 of 2015 (R)
Decided On : 29-10-2015
Guardians and Wards Act, 1890 - Section 7 - Family Courts Act, 1984 - Section 7 - Power of the Court to make order as to guardianship - Seeking custody of the minor children - Guardian of minor child - case for custody of minor children, the paramount consideration of the Court exercising 'parens patriae' jurisdiction shall be the welfare of the children - Held, In selecting a proper guardian for a minor the paramount consideration should be the welfare and well being of the child and Court should handle such issues with love, affection and sentiments, by applying a human touch to the issues before it and not rights of their parents or grandparents - Therefore right of petitioner to have visitation right over minor children of her deceased daughter is not an absolute or unbridled right.
ANIL K. NARENDRAN, J.
1. The petitioner has filed this O.P.(FC) under Article 227 of the Constitution of India, mainly seeking an order to set aside Ext. P12 common order dated 13.08.2015 of the Family Court, Thiruvananthapuram in I.A. Nos. 1750, 1756, 1844 and 1845 of 2015 in O.P.(G&W) No. 1097 of 2015.
2. The petitioner filed O.P.(G&W) No. 1097 of 2015 [Ext. P1] before the Family Court, under Section 7 of the Guardians and Wards Act, 1890, read with Section 7 of the Family Courts Act, 1984 seeking for an order to appoint her as guardian of the minor children, viz. Sreya L.S. Nair and Avinash L.S. Nair; to grant her legal custody of the minor children; injunct the respondent from taking away the minor children from her custody, without prior permission of the Court, as long as she keeps the minor children under her custody; and to direct the respondent to transfer due share of the minor children in all the properties, both movable and immovable, left behind by late Lekshmi. Along with the said petition, the petitioner filed I.A. No. 1750 of 2015 [Ext. P2] for production of minor children before the Family Court; I.A. No. 1756 of 2015 [Ext. P2(a)] mainly for furnishing the details of properties, both movable and immovable, left behind by her deceased daughter and the steps taken by the respondent to transfer due share in such properties in favour of the minor children; I.A. No. 1844 of 2015 [Ext. P2(b)] to give her interim custody of the minor children till the final disposal of O.P.(G&W) No. 1097 of 2015; and I.A. No. 1845 of 2015 [Ext. P2(c)] seeking an order of injunction restraining the respondent from removing the minor children from the jurisdiction of the Family Court, Thiruvananthapuram.
3. On receipt of notice in Ext. P1 original petition and Exts.P2(a) to P2(c) interlocutory applications, the respondent entered appearance and filed counter affidavits in the interlocutory applications. The respondent filed Ext. P3 counter affidavit in Ext. P2(b) application and Ext. P3(a) counter affidavit in Ext. P2(c) application. The petitioner has also filed Exts.P4 and P4(a) reply affidavits.
4. By the impugned order, the Family Court allowed in part I.A. No. 1750 of 2015, by directing the respondent to make necessary arrangements at the visitors room in Air Force Station, Akkulam for permitting the petitioner to visit the minor children on every second Saturday, in between 10.00 a.m and 11.00 a.m. It was also made clear that, if the petitioner finds any difficulty or inconvenience to visit the children at the Air Force Station, Akkulam, she will be at liberty to approach the Court for suitable modification in her visitation right. The Family Court dismissed I.A. Nos. 1756 of 2015, 1844 of 2015 and 1845 of 2015 stating various reasons. It is aggrieved by Ext. P12 common order passed by the Family Court, the petitioner is before this Court in this O.P.(FC) filed under Article 227 of the Constitution of India.
5. We heard the arguments of the learned counsel for the petitioner.
6. The petitioner is the maternal grandmother of the minor children, viz., Sreya L.S. Nair and Avinash L.S. Nair. The elder child Sreya L.S. Nair aged 7 years is studying in Kendriya Vidyalaya, Air Force Station, Akkulam and the younger child Avinash L.S. Nair is now aged 1 year. The petitioner's daughter Lekshmi S.Nair, who was working as Squadron Leader in Air Force Station, Agra died on 23.10.2014 at Army Hospital (R&R), New Delhi. The respondent was also working as Squadron Leader in Air Force Station, Agra and was staying in the Air Force Quarters along with his wife and children.
7. The petitioner suspects some foul-play in the death of her daughter and according to her the respondent might have played a role in that incident. The petitioner would contend that, immediately after the death of Lekshmi, the respondents took hasty steps to get all financial benefits on account of her death in his name. At first, the respondent removed the elder child fr
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