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2025 Supreme(Ker) 2610
IN THE HIGH COURT OF KERALA AT ERNAKULAM
DEVAN RAMACHANDRAN, M.B. SNEHALATHA, JJ.
Musthafa, S/o. Muhammed – Appellant
Versus
Rehana P.S., D/o. Kunjootty – Respondent
Mat.Appeal No. 322 of 2023
Decided on : 26-08-2025
For the Appellant : SMT.M.B.SHYNI, SHRI.RAMEES P.K., SHRI.V.R.ANILKUMAR, SHRI.RAJESH KUMAR R.
For the Respondent: ADV SRI.M.R.SASITH
The court emphasized the importance of maternal presence during critical developmental phases for minor children during custody decisions.
Headnote:(A) Guardians and Wards Act, 1890 - Custody of minor children - The Family Court's decision to grant permanent custody of the children to the mother was based on the findings of emotional and physical necessity for maternal presence; the father's prior marital history and allegations raised against him were also considered. (Paras 1, 7, 28, 30)
(B) Best interests of children - The court emphasized that the emotional wellbeing and psychological development of the children are paramount when addressing custody issues, affirming that a mother is essential during critical developmental phases. (Paras 8, 29)
Facts of the case:
The father appealed the Family Court's order granting permanent custody of two children aged six and eight to their mother. Arguments presented highlighted the emotional bond of the children with their father, whereas concerns about the father’s prior conduct were raised.
Findings of Court:
The Family Court concluded that the children's need for maternal support during ages six and eight was critical, and the mother should have permanent custody based on emotional and developmental considerations.
Issues: The court examined the appropriateness of custody arrangements given the children’s ages and the parental capabilities of both parties.
Ratio Decidendi: The court held that children at the ages of six and eight primarily require maternal care and emotional support, a principle which outweighs the father's plea for custody based on their affection for him.
Result: Appeal dismissed; permanent custody granted to the mother.
| Table of Content |
|---|
| 1. discusses parental custody of children. (Para 1 , 2 , 3) |
| 2. evaluates parental fitness and allegations. (Para 4 , 7) |
| 3. assessing evidence and testimonies. (Para 5 , 6 , 8) |
| 4. heightened concern for children's welfare. (Para 9 , 10 , 19) |
| 5. finding custody best for children's growth. (Para 22 , 25 , 28) |
| 6. decision to maintain custody with mother. (Para 29 , 30) |
JUDGMENT
Devan Ramachandran, J.
The appellant – the father of two children, aged six and eight years - assail the judgment of the learned Family Court, Kalpetta, in O.P(G&W) No.87/2022 because, their permanent custody had been ordered in favour of the respondent – their mother.
2. Smt.M.B.Shyni – learned counsel for the appellant, argued that the children are extremely fond of their father – the appellant herein; and that they are attending classes at Masinagudi, Tamilnadu, where the former is now living. She argued that, hence, the findings of the learned Family Court are untenable; and prayed that this Appeal be allowed, with the children being permitted to stay with their father.
3. In response, Sri.M.R.Sasith – learned counsel for the respondent, argued that the children, as stated above, are now six and eight respectively and are in an age where they would require the presence of their mother more than any other time. He contended that the appellant – father is a man who had married twice before, with a child in one of them; and hence that leaving the children to his care exclusively is not only dangerous to them, but would be counterproductive to their development and growth as worthy citizens.
4. Sri.M.R.Sasith further argued that the appellant had been involved in a criminal case earlier, being of a ‘deviant’ character; and consequently, that the findings of the learned Family Court can never be found to be in error. He concluded his submissions saying that the real nature of the appellant stand exposed since he alleges that the respondent is involved with a man by name ‘Shoukath Ali’, but that he has been unable to corroborate this in any manner, thus establishing the malice he carries against her.
5. We have evaluated the afore rival submissions on the touchstone of the various materials and evidence on record.
6. The evidence consists of the testimony of PW1 - who is the respondent herein and RW1, namely the appellant; along with Exts.A1 to A5 marked on the side of the respondent, with Ext.B1 series of photographs being produced by the appellant.
7. The learned Family Court has, in the impugned judgment, held that the children being girls of 4 and 6 years at that time, require their mother to support their physical and emotional needs, but cannot be alienated from the father either. It then went through the evidence in detail, to find that the allegation against the respondent by the appellant - that she was involved with a person by name Shoukath Ali - has not been proved; and further that the former had married twice before, fathering a child from one of them, who also is stated to be taken care of by him.
8. When one goes through the admitted case and the evidence available, it becomes ineluctable that, even according to the parties, they were not married legally, but were living together. But, they unequivocally admit that the children are theirs. RW1 – the appellant herein, admitted that he had been married twice before and has a child from one of such marriages, asserting that he is taking care of the child, as also his earlier wives. We see that the learned Family Court has noted the testimony of PW1, that the appellant was involved in a Sessions case; but to find that he had not been convicted and hence, that the allegation of deviant behaviour impelled against him cannot be countenanced.
9. The learned Court also interacted with the children, who said that they prefer to live with their father; but to conclude that this would only be because he has been in their care for several years now, they having been allegedly taken away by him as early as
