IMPORTANT POINTS
The Family Court rightly by Ext.P13 order ordered the child to be handed over to the respondent, while the petitioner pursues her studies in Mumbai and directed the petitioner to move appropriate application, as soon as she completes her course and returns to Kerala. The direction cannot be found fault with because if the child lives in Mumbai, a place alien to the child, he will have to adopt to a new culture, language, surroundings and above all denied the company and companionship of his siblings.

JUDGMENT :

C.S. DIAS, J.

1. The above original petitions are filed under Article 227 of the Constitution of India, challenging Ext.P15 order passed in I.A. 60/2019 and Ext.P13 order passed in I.A. No. 1068/2019 in O.P. 1141/2017 of the Family Court, Kozhikode.

2. The petitioner is the respondent in O.P. No. 1141/2017. The original petition is filed by the respondent seeking permanent custody of their youngest son Azadul Hind Fateh Ali Tippu.

3. It is the case of the petitioner in both the original petitions, that she is the divorced wife of the respondent. They have three children in their wedlock. The respondent used to brutally harass and torture her. On 22.9.2014, the respondent drew her out of the matrimonial home. At that time she could only take the youngest child with her, as the older children were at school. Since the respondent denied custody of the older children to her, she filed O.P. No. 716/2014 before the Family Court, seeking the permanent custody of the older children. By the order of this Court, the case was transferred from the Family Court Tirur to the Family Court, Malappuram.

4. The petitioner has also averred that the respondent filed O.P. No. 83/2017 before the Family Court, Tirur, seeking permanent custody of their youngest child. The Family Court by Ext.P3 order in I.A. No. 184/2017 directed the petitioner to provide visitation rights of the youngest child to the respondent from 10.00 a.m. on every Saturday to 10 a.m. on the ensuing Sunday. The petitioner challenged the order before this Court in O.P. (FC) No. 310/2017. This Court by Ext.P4 judgment dismissed the original petition, holding that there was no scope for interference in the order.

5. The petitioner has further averred that she, thereafter, filed I.A. No. 970/2017, seeking to modify Ext.P3 order on the assertion that she had secured a temporary employment in Karassery near Mukkom. However, the Family Court dismissed the application, which was again challenged before this Court in O.P. (FC) No 452/2017. This Court by Ext.P7 judgment dismissed the original petition directing the petitioner to comply with Ext.P3 order till the disposal of the case.

6. The petitioner has also pleaded that she again filed I.A. No. 1450/2017 (Ext.P8) seeking to restrict the visitation rights of the respondent to twice a month during day time. The Family Court by Ext.P9 order dismissed the application in view of the findings in Ext.P7 order of this Court. The petitioner challenged Ext.P9 order before this Court in O.P. (FC) No. 602/2017. This Court by its interim order directed the petitioner to hand over the youngest child to the respondent on every Friday from 10.30 a.m. to 4 p.m. before the Family Court, Malappuram and further directed the respondent to hand over the older two children to the petitioner.

7. The petitioner has also averred that she used to hand over the custody of the youngest child to the respondent on every Friday, but unfortunately on 8.12.2017 the respondent abused her in vituperative language and tortured her. He, thereafter, on 26.1.2018, assaulted her and she was hospitalised. Police has registered a case against the respondent. The petitioner filed I.A. 2/2018 seeking to modify Ext.P3 interim order.

8. The petitioner has further pleaded that, when the case came up for hearing, this Court by Ext.P14 judgment set aside the order in I.A. No. 1450/2017 in O.P. No. 83/2017. During this intervening period, this Court by its judgment in Tr. P.C. Nos. 508, 509 and 610 of 2017 transferred O.P. 83/2017 and connected cases to the Family Court, Kozhikode. O.P. 83/2012 was renumbered as O.P. 1141/2017. The Family Court was directed to expeditiously dispose of O.P. 83/2017. It was made clear that Ext.P3 was not modified.

9. The petitioner also pleaded that the Family Court without considering the assertions in the affidavit, by Ext.P15 order dismissed the petitioner's application seeking modification. It is challenging Ext.P15 order that O.P. (FC) No. 176/2019