IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE K.HARILAL

&

THE HONOURABLE MRS. JUSTICE ANNIE JOHN

TUESDAY, THE 25TH DAY OF JUNE 2019 / 4TH ASHADHA, 1941

OP (FC).No.414 of 2019

AGAINST THE ORDER/JUDGMENT IN OP(GW) 152/2019 of FAMILY COURT,

MALAPPURAM DATED 07-05-2019

PETITIONER/S:

JAMSHEENA

D/O. VEERANKUTTY, THOTTIYIL HOUSE, KOLAPARAMBA, NOW

RESIDING AT POOLAKKUNDAN QUARTERS, PADAPARAMBA,

VATTALLOOR, CHOORAKKAVA, PERINTHALMANNA

BY ADVS.

SRI.PHILIP J.VETTICKATTU

SRI.G.HARIKRISHNAN (TRIPUNITHURA)

RESPONDENT/S:

SIRAJUDHEEN,

S/O. ISMAYIL , ALUMTHARA HOUSE, KOLAPARAMBA, PANDIKKAD

AMSOM, ERNAD TALUK, MALAPPURAM 676 522

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 25.06.2019,

THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

K. Harilal,J.

Aggrieved by the denial of the overnight stay with the

children, the petitioner had preferred this Original Petition

challenging the order passed by the Family Court,

Malappuram in I.A. No. 258 of 2019 in O.P. No. 152 of

OP(FC) No. 414/2019

: 2 :

2019. The petitioner is the mother of the children by name

Muhammed Rifan, aged 9 years and Diya Fathima, aged 2

years. She filed the aforesaid Interlocutory applications

seeking interim custody of the said children on the allegation

that the respondent, her husband, is not permitting her to see

or interact with the children. According to her, now the

respondent has married again, he is working abroad and the

children are residing along with the second wife of the

respondent.

2. The respondent opposed the said application

contending that the petitioner is a lady, who abandoned the

children and eloped with another man, when the younger

child was aged only one year old. The petitioner eloped with

one Anus, her paramour. When she was arrested and

produced before court, she expressed her intention to go

along with the said Anus leaving the children in her house.

3. After considering the rival pleas, the court below

denied the overnight stay with the children, but granted

OP(FC) No. 414/2019

: 3 :

visitation right on every third Saturday from 11 a.m. to 3 p.m

in the court premises. The legality and correctness of the

denial of the overnight stay with the children are challenged

in this Original Petition.

4. Heard the learned counsel for the petitioner.

5. It is not in dispute that the petitioner had eloped with

one Anus, when her younger child was only one year old. The

police registered a case for man missing against the petitioner

as Crime No. 30 of 2018. After investigation, the police found

the petitioner with her paramour by name 'Anus', took them

into custody and produced them before the Judicial First Class

Magistrate Court, Perinthalmanna. The learned Magistrate

recorded the petitioner's statement, wherein she has stated

that she is intending to go along with Anus. Subsequently, on

05.02.2018, the petitioner married the aforesaid Anus under

the Special Marriage Act. Thus, obviously, the materials on

record would show that when the younger child was aged one

year old only, the petitioner abandoned the child and eloped

OP(FC) No. 414/2019

: 4 :

with her paramour by name Anus. As rightly observed by the

court below, we are of the view that it is not sure that the

petitioner will take care of and protect the children, if the

interim custody of the children with overnight stay is given to

her. In short, the petitioner is not a fit mother to get the

overnight stay of the children with her. We do not find any

ground to interfere with the said findings of the court below.

However, the court below is directed to dispose of the Original

Petition as early as possible, untramelled by the observations

made above.

With the above observations, this Original Petition is

dismissed.

sd/-

K. HARILAL,

JUDGE.

sd/-

ANNIE JOHN,

JUDGE.

Rv

OP(FC) No