The best interests of the child, including educational requirements and the child's wishes, should be the primary consideration in custody and guardianship disputes.

R. 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.

"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 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 practise 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 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 sai