High Court Kerala High Court

M.A.Abdul Hameed Alias Hameed vs Sakheena on 5 March, 2010

Kerala High Court
M.A.Abdul Hameed Alias Hameed vs Sakheena on 5 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA.No. 24 of 2004()


1. M.A.ABDUL HAMEED ALIAS HAMEED,
                      ...  Petitioner

                        Vs



1. SAKHEENA, D/O. MOHAMMEDKUNHI,
                       ...       Respondent

                For Petitioner  :SRI.D.KRISHNA PRASAD

                For Respondent  :SRI.K.SHRIHARI RAO

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :05/03/2010

 O R D E R

Thottathil B.Radhakrishnan

&

P.S.Gopinathan, JJ.

= = = = = = = = = = = = = = = = = = = = = = = =

M.F.A.24/2004 & C.M.Appl.409/2004

= = = = = = = = = = = = = = = = = = = = = = = =

Dated this the 5th day of March, 2010.

Judgment

P.S.Gopinathan, J.

1.This is an appeal preferred by the petitioner in

O.P.22/2000 on the file of the District Judge,

Kasaragod, a petition seeking custody of the five

children born out of the wedlock between the

petitioner and the respondent. The learned

District Judge dismissed the petition on finding

that the welfare of the minor was very safe at

the hands of the respondent and no circumstance

revealed out to disturb the custody. As against

the said order this appeal was preferred.

2.In filing the appeal there is delay of 6 days. It

is stated in the affidavit accompanying the

application that the petitioner was laid up and

thus there occurred delay. No objection was filed

by the respondent. Having heard the learned

MFA24/04 -: 2 :-

counsel on either side, we find that the

petitioner-appellant had satisfactorily explained

the delay in filing the appeal. Hence, we condone

the delay.

3.It is submitted that the eldest two children had

attained majority. This appeal was filed on

17.12.2004. By the passage of time, two out of

five children had attained the majority. So, as

regards those children who had attained majority

the appeal has become infructuous.

Though the learned District Judge had dismissed

the petition, he had given liberty to the

appellant to apply for and to have the interim

custody of the children during the vacation or

school holidays and also given liberty to file

fresh petition for custody in the event of change

of circumstances. The appellant had not sought

for such custody till date. The conduct of the

appellant being of such nature, and the appellant

was given liberty to file fresh petition for

MFA24/04 -: 3 :-

custody as and when there is change of

circumstances; and that the learned District

Judge had considered all circumstances, including

the welfare of minors and we having found no

error in the order impugned, we find that it is

not necessary to disturb the custody of the minor

children at this long span of time. But, it would

be appropriate to reiterate the aforesaid clause

and to give liberty to the appellant to apply for

interim custody or permanent custody in the event

there is any change of circumstances and if so

proposed by him. We find no merit in the appeal

and the appeal is disposed with liberty to the

appellant to apply for the interim custody of the

children or to file fresh petition for custody as

and when there is change of circumstances.

Thottathil B.Radhakrishnan,
Judge.

P.S.Gopinathan,
Judge.

Sha/1603