IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN &

THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR THURSDAY, THE 14^TH DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 OP(FC) NO.163 OF 2024 OPGW NO.2182 OF 2023 OF FAMILY COURT, MAVELIKKARA ---------------

PETITIONER/PETITIONER/RESPONDENT :-

SHAMNAD A, AGED 37 YEARS S/O.LATE ABDUL MAJEED, VANIKAPURA THEKKATHIL VEEDU, VEEYAPURAM MURI, VEEYAPURAM VILLAGE, KARTHIKAPALLY TALUK, ALAPPUZHA DISTRICT, PIN – 690 514 BY ADVS.

T.M.ABDUL LATHEEF VAISHNAV DEV RESPONDENT/RESPONDENT/PETITIONER :-

HUDA N NAZAR, EAZHICHINETHU VEEDU, KADATHUR P.O, THAZHAVA VILLAGE, KOLLAM DISTRICT, PIN – 690 523 BY ADVS.

BASIL CHANDY VAVACHAN CHARUTHA BHAIJU(K/000413/2018)

CHANDHANA BHAIJU(K/001122/2022)

BASIL SAJAN(K/2266/2022) FATHIM NAVAS(K/785/2023)

GEORGIE SIMON(K/001374/2001)

KAVYA P.R.(K/1157/2023)

LEKSHMI PRIYA V.(K/1025/2024)

BASIL SCARIA(D/8405/2018)

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON

14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 14 ^th day of March, 2024 Anu Sivaraman, J.

Heard the learned counsel appearing on either side.

2. The learned counsel appearing for the petitioner contends that the petitioner is the father of two minor children and respondent is the mother. The marriage between the petitioner and the respondent was solemnized on 10.4.2016. Since there were disagreements between the parties, a Talaq Mubarath agreement was entered into between the parties and it was decided to end the marriage by mutual consent. Accordingly, the Mubarath agreement was executed by the parties and O.P.(MMA) No.53/2022 was filed before the Family Court, Chavara and by Ext.P2, the marriage between the parties was dissolved on the basis of the extra judicial Mubarath agreement executed on 17.9.2022.

3. The learned counsel for the petitioner submits that Ext.P1 Mubarath agreement specifically stated that the custody of the minors would be with the petitioner and that the respondent could not file any case for getting their custody.

However, it is submitted that thereafter, the respondent mother preferred Ext.P4 OP(G&W) No.2182/2023 before the Family Court, Mavelikkara seeking custody of the children. The petitioner submitted objections and raised a question of maintainability pointing out that since the Mubarath agreement had specifically included the custody of the children, a fresh OP filed by the respondent mother is in violation of the Mubarath agreement and that the OP, if any, could have been filed only before the Family Court, Chavara since the said court had accepted the agreement and rendered a judgment. The learned counsel would also rely on the provisions of Sections 7 and 39 of the Guardians and Wards Act and contend that it is only the Family Court, Chavara which would have the territorial jurisdiction to consider the OP.

4. Section 7 of the Guardians and Wards Act reads as follows:-

“7. Power of the Court to make order as to guardianship.- (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made-

(a) appointing a guardian of his person or property or both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly.

(2) An order under this Section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.”

5. It is the contention of the learned counsel for the petitioner that it is only when a guardian appointed by will or other instrument or appointed or declared by the Court is removed that another person can be appointed as guardian in his stead. It is submitted tha