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2021 Supreme(Ker) 1070
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. MUHAMED MUSTAQUE, SOPHY THOMAS, JJ.
Ralith Ram, S/o. Raman - Appellant
Versus
Ashna, D/o. Shanmughan - Respondent
Mat. Appeal No.625 of 2020
Decided On : 16-11-2021
For the Appellant : M.K. Dileep Kumar.
For the Respondent: C.A. Chacko.
Point of Law: A mother is she who can take the place of all others, but whose place no one else can take.
Headnote:
Guardian and wards - Divorced - Permanent custody of minor child - Appellant herein is petitioner in O.P. of Family Court and respondent is his divorced wife he filed that O.P. for getting permanent custody of minor child who is only child born in their wedlock. appellant married respondent and minor was born - In year 2016, matrimonial relationship between appellant and respondent got strained and they started living separately, and later obtained divorce as per decree in O.P. - Family Court dismissed O.P. denying his prayer for permanent custody and allowed interim custody of child from 10 a.m. on every 2nd and 4th Saturdays till 5 p.m. on following Sunday and also for first ten days in month of April and May during summer vacations, fixing venue for exchange as office of Family Court - Challenging impugned order, petitioner-father has come up with this appeal.
Finding of the Court:
Family Court found that the allegations of respondent ignoring the child and not giving medical attention to the child etc - Court view that, let the child continue in the custody of his mother till he completes his schooling. It would be better for the child also, to continue in the same school in the same ambience, with same set of friends. During that period, the appellant can have weekend custody of the child every Friday from 5 p.m. till 5 p.m. on ensuing Sunday and also during the first half of Onam, Christmas and summer vacation. On Saturdays, when the child is having class (regular/special), appellant can have custody of the child from 5 p.m. on Saturday till 5 p.m. on ensuing Sunday. After child completes his 10th Standard, if the appellant wants to get permanent custody of the child, he can move Family Court for appropriate orders - Venue of exchange shall continue to be the premises of the Family Court until a different venue is agreed upon by parties on mutual consensus - Permanent custody of child shall be with the respondent-mother - Interim custody granted by the Family Court is modified.
Result: Appeal dismissed.
JUDGMENT :
Sophy Thomas, J.
The appellant herein is the petitioner in O.P. No.633 of 2018 of the Family Court, Thrissur and the respondent is his divorced wife. He filed that O.P. for getting permanent custody of the minor child Rishab P. Ralith who is the only child born in their wedlock. The appellant married the respondent on 03.05.2009 and the minor Rishab was born on 06.07.2010. In the year 2016, the matrimonial relationship between the appellant and the respondent got strained and they started living separately, and later obtained divorce as per the decree in O.P. No.2132 of 2017. Thereafter, the appellant filed O.P. No.633 of 2018 for getting permanent custody of the minor child. The respondent-wife opposed that petition stating that, the appellant was having intimate relationship with one Smt. Renu, and whenever she objected that relationship, she was subjected to cruelty, and later she was sent out of her matrimonial home along with her child. She was granted divorce on the ground of matrimonial cruelties from the part of the appellant. So the appellant is not entitled for permanent custody of the child. She is doing everything for the welfare of the child, and the child has to be under her custody permanently, subject to the interim custody granted by the Family Court, which she is complying with.
2. The Family Court considered that O.P. along with O.P. No.1945 of 2017 filed by the parents of the appellant, for getting visitation rights to share love with their grandchild. PWs 1 to 4 were examined and Exts.A1 to A15 were marked from the side of the appellant and RW1 was examined and Exts.B1 to B26 were marked from the side of the respondent. After evaluating the available facts and evidence, and on hearing the rival contentions of either side, the Family Court dismissed O.P. No.633 of 2018 denying his prayer for permanent custody and allowed interim custody of the child from 10 a.m. on every 2nd and 4th Saturdays till 5 p.m. on the following Sunday and also for the first ten days in the month of April and May during summer vacations, fixing the venue for exchange as the office of the Family Court, Thrissur. Challenging the impugned order, the petitioner-father has come up with this appeal.
3. The appellant-husband would say that he is preferable to have permanent custody of the child as his educational and financial status are better than that of the respondent-wife. Moreover, the child is now 11 years old and he is able to take intelligent decision on his own. The child had expressed his willingness before the Family Court to live with his father permanently. But, the Family Court erred in finding that the child was not old enough to form an intelligent preference and so his O.P. was dismissed permitting the respondent to have permanent custody of the child, and limiting his claim to have only interim custody for few days. According to him, the respondent is leading a flirting life and she is not looking after the child properly. She is not educated enough, and her financial status also is not good enough when compared to that of the appellant. So she is not competent to get permanent custody of the child.
4. The matrimonial relationship of the appellant and the respondent was put to an end legally, as per the decree in O.P. No.2132 of 2017 filed by the respondent. Ext.A2, copy of the order in O.P. No.2132 of 2017, speaks about the matrimonial cruelty extended to the respondent-wife by the appellant-husband. It was found that he was keeping an uncharitable intimacy with one Smt. Renu, who is the wife of his employer, and he continued that intimacy ignoring the protest of his wife. Admittedly, Smt. Renu was attending him in hospital as well as in his house, in exclusion of his wife. Though the allegation of adultery was not proved against him, the very reason for their separation was found to be the unholy or uncharitable intimacy between himself and Smt. Renu. Admittedly that order is not challenged by him.
5. The appella
