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KERALA HIGH COURT
K. Harilal and T.V. Anilkumar, JJ.
Suhara and Ors. —Petitioners
versus
Muhammed Jaleel and Ors. —Respondents
Mat. Appeal Nos.182 and 198 of 2019
Decided on 10.4.2019
For the Petitioners:Sri. Jacob Sebastian and Sri. K.V. Winston, Advocates
For the Respondents:Sri. G. Sreekumar (Chelur), Advocate
IMPORTANT POINT
Appointment of guardian of child—Welfare of child is of paramount consideration than inter se rights between rival contestants for permanent custody.
Headnote:(A) Guardians and Wards Act, 1890 – Section 17 – Appointment of guardian of child – When there is rival claim for guardianship, Court’s power to appoint most suitable person among contestants could be exercised only upon taking into view those considerations which weigh in favour of welfare of child – Welfare of child is of paramount consideration than interse rights between rival contestants for permanent custody – Before deciding to grant permanent custody of child, court shall take into account totality of circumstances in which child is placed and consider whether entrustment of child to permanent custody of petitioning guardian would be in interest of welfare of child – In this process, character of proposed guardian and also his capacity to maintain child are also matters requiring consideration – It is equally mandatory that court has to interact with child to ascertain preferential choice which child may make if he or she is old enough to form an intelligent preference. (Para 15)
(B) Guardians and Wards Act, 1890 – Section 17 – Custody of child – Merely because a crime alleging dowry death is under further investigation, claim for custody of minor ward cannot be denied to respondent if he is otherwise legitimately entitled to custody especially when complaint against him was referred as false on a former occasion – On facts, evidence and also principles of law, no reason to disagree with view of court below that respondent, father is a fit and proper person to be entrusted with permanent custody of the child – Welfare of child demands her stay with father. (Para 24)
Appeal partly allowed. The orders of the Family Court modified.
T.V. Anilkumar, J.—Common judgment in O.P.608 and 628 of 2015 passed by the Family Court, Ottapalam on 7.2.2019 is challenged by the petitioner in O.P.608/2015 in Mat. Appeal 182/2019 and by the respondents in O.P.628/2015 in Mat. Appeal 198/2019. The common respondent in both Mat. Appeals is the father of the girl child, Fathimathul Jasla, who was aged only 2 years on the date of institution of original petitions before the court below.
2. The grand mother of the child filed O.P.No.608/2015 for a decree of perpetual prohibitory injunction restraining the respondent herein from taking forcible custody of the child from her. The respondent severely opposed the petition and simultaneously filed O.P.628/2015 for a decree claiming permanent custody of the child as against the appellants in Mat. Appeal No.198/2019 who are the grand parents of the child and also one of their sons. The Family Court while dismissing O.P.608/2015 for perpetual injunction chose to decree O.P.628/2015 entrusting the child to the permanent custody of respondent/father subject to the appellants’ limited right of visitation of the child once in a month at the premises of Family Court, Ottapalam. Being aggrieved by the common judgment, these two separate appeals were filed.
3. Both O.Ps were jointly tried by the court below taking up O.P.No.608/2015 filed by the appellant, grand mother as the main case. The reference in this appeal to the parties, unless the context otherwise indicates, will be as per their rank in Mat. Appeal No.182/2019.
4. Appellant’s daughter Sajna was married to respondent on 2.6.2011. She died at the matrimonial house on 8.5.2015. The marriage, the paternity of child and death of Sajna are not disputed facts in these appeals. According to the appellant, right from the date of death of her daughter Sajna, the child was taken care of and maintained at the house of the grand parents and family. The respondent declined to take care and maintain her as if he was not interested in the child. Sajna is said to have died under suspicious circumstances and therefore, a Crime No.91/2016 under Sections 498A, 304B, 302, 201 and Section 149 of IPC was registered against the respondent by Perinthalmanna Police, at the initiation of her father, PW2 and investigation is in progress. Respondent is alleged to be a drunkard and spendthrift who used to ill treat the deceased Sajna demanding dowry. It is his cruel conduct towards wife that is said to have resulted in her death. Respondent is alleged to be ambitious enough to remarry for his pleasure forgetting that he has a child to look after. He is totally disqualified and unfit to seek permanent custody of the minor ward. No congenial environment exists in the family of respondent and if the child is allowed to stay with him, it will certainly ruin ward’s life. On 23.11.2015, respondent is alleged to have made a vain attempt to remove the child from the custody, but it was foiled. Enumerating these allegations, the grand mother filed O.P.608/2015 for a decree of permanent prohibitory injunction.
5. The Family Court, Ottapalam, during the pendency of O.P.No.608/2015, was pleased to grant an ad interim ex parte injunction order, restraining the respondent from removing the child from the custody of the appellant.
6. The respondent filed defence statement. The contentions in the defence statement are identical to those taken by him in the petition in O.P.628/2015 also.
7. Respondent’s allegation is that, right from the date of death of his wife, he alone maintained Fathimathul Jasla and took care of her affairs. There was no occasion for the appellant or her family members to take care of the child or protect her. The child and the father were so intimately attached with each other to such an extent that the child used to call him as ‘Umma’. He is not responsible for death of Sajna and as a matter of fact, her death was due to heart failure. She was an epileptic patient even before marriage which had been
