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2012 DIGILAW 817 (KER)

Rasha v. Ajmal

2012-08-30

K.T.SANKARAN, M.L.JOSEPH FRANCIS

body2012
JUDGMENT Joseph Francis, J. 1. This Original Petition, under Article 227 of the Constitution of India is filed by the first respondent in I.A.No.982 of 2012 in O.P.No.517 of 2012 on the file of the Family Court, Malappuram. The first respondent herein was the petitioner in that interlocutory application, which was filed by him under Section 12 of the Guardians and Wards Act, 1890 (for short, 'the Act') for interim custody of his minor children. The second respondent herein was the second respondent in that interlocutory application. 2. The facts of the case are briefly as follows : The petitioner and the first respondent herein were married on 27.7.2003 and two children, viz., Zerin Ajmal, now aged 7 years and Zebin Ajmal, now aged 6 years were born in that wedlock. It is alleged that out of the matrimonial cruelty and ill treatment, the petitioner started living separately from the first respondent from 19.11.2006 onwards. The children were residing with the petitioner. There were various litigations between them. O.P.No.881 of 2010 filed by the first respondent for custody of the minors after four years of the separation was dismissed for non-prosecution. As per the order dated 26.07.2011 in O.P.No.362 of 2012, the marriage between the petitioner and first respondent was dissolved. On 2.1.2012, the petitioner remarried the second respondent. The first respondent, thereafter, filed O.P.No.517 of 2012 seeking custody of the children. I.A.No.982 of 2012 was filed for interim custody. The Family Court passed the impugned order directing the petitioner to hand over custody of the minors on all Saturdays and Sundays, Onam holidays, Christmas holidays and annual vacations to the first respondent. The first respondent was directed to take the children from their school on every Friday evening and drop them in the school on every Monday morning. Against the said order, the first respondent in that interlocutory application filed this Original Petition(FC). 3. The learned counsel for the petitioner (mother) submitted that by the impugned order, the custody of the children with the petitioner is limited to Monday evening to Friday morning. On all such days, the children have to attend the school. The petitioner is deprived of the custody of the children on all the holidays. The petitioner is an employed lady. She will be finding it convenient to assist the children in their studies only during holidays. On all such days, the children have to attend the school. The petitioner is deprived of the custody of the children on all the holidays. The petitioner is an employed lady. She will be finding it convenient to assist the children in their studies only during holidays. The court below has totally discarded the plight of the minor children being handed over to the custody of the first respondent, who has no acquaintance with them at all. The learned counsel for the petitioner submitted that even though the first respondent is the father, he is a total stranger as far as the children are concerned. The children who were separated from the first respondent at the age of 2 years and nine months respectively had no occasion to interact with him thereafter. The learned counsel further submitted that the court below ought to have found that handing over custody of the children on a fine morning to the father without affording any opportunity to create an atmosphere of acquaintance is not at all warranted. The learned counsel for the first respondent supported the order under challenge. 4. Section 12 of the Act empowers the Court to pass such orders as it thinks proper for the temporary custody of minors and protection of the property of minors. Passing of an order under Section 12 of the Act is discretionary and the discretion has to be exercised judiciously in accordance with law, after considering the facts and circumstances of each case. The real test which the Court has to apply in appointing a guardian and giving custody is whether the appointment and custody will be for the welfare of the minors. 5. There cannot be any argument against the necessity for the minor children to spend time with both the parents. Considering the facts and circumstances of the present case, we are of the view that the impugned order has to be modified in the interests of justice, considering the arguments advanced by both sides. 6. 5. There cannot be any argument against the necessity for the minor children to spend time with both the parents. Considering the facts and circumstances of the present case, we are of the view that the impugned order has to be modified in the interests of justice, considering the arguments advanced by both sides. 6. Accordingly, this Original Petition (Family Court) is allowed in part and the order in I.A.No.982 of 2012 in O.P.No.517 of 2012 on the file of the Family Court, Malappuram is modified and the petitioner (father) in that interlocutory application is allowed to have interim custody of the minors on alternate Saturdays and Sundays, second half of Onam, second half of Christmas and second half of annual vacations. The petitioner (father) can take the children from the School on alternate Friday evening and drop back the children in the School on the next Monday morning. During the second half of Onam, second half of Christmas and second half of annual vacations, he can take the children from the house of the 1st respondent (mother) and drop back the children at her residence in the evening on the previous day of reopening of the school. There is no order as to costs.