IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 1011 of 2009()
1. K.K.HASSAN RAWTHER,
... Petitioner
2. S.FATHIMA BEEVI,
Vs
1. S.ABDUL AZEEZ (DR.),
... Respondent
For Petitioner :SRI. S.A. RAZZAK
For Respondent :SRI.P.K.IBRAHIM
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :08/06/2010
O R D E R
R. BASANT &
M.C. HARI RANI, JJ.
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Mat. Appeal No.1011 of 2009-D
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Dated this the 8th day of June, 2010
JUDGMENT
Basant,J.
The maternal grandparents of a minor by name `Naureen
Abdul Azeez` are the appellants in this Mat. Appeal. They are
aged 64 years and 61 years respectively. The minor child is aged
11 years (date of birth : 14/4/1999). The respondent herein is
the father of the minor child. The mother of the minor child
Anjana Hassan got married to the respondent herein on
14/5/1998. Even though there was unilateral pronouncement of
talaq by the respondent on 27/10/2002, the marital tie appears
to have continued – evidently by resumption of co-habitation.
The marital tie was put an end to under Ext.B1 agreement of
divorce entered into between the spouses on 09/04/2006. In the
said agreement, the following stipulations regarding custody of
the child appear in paragraphs 4 and 5.
Mat. Appeal No.1011 of 2009 -: 2 :-
“4. The parties will continue to have all
rights and obligations in law relating to their
daughter Naureen A.Azeez and it is made clear
that this agreement of divorce will not in any
way prejudicially affect the interests of the
minor child who is now aged 7 years and is in
the custody of her maternal grandmother at
Adoor in Kerala.
5. Subject to what is agreed herein
above the 1st party shall have the right to see the
female child at any time and can have her
custody during the holidays and that the minor
child shall not be taken out of Kerala by either
party without specific consent of the other
party.”
2. As per the stipulations in Ext.B1, the child continued
to be in the custody of the grandparents at Adoor. The
respondent, that is the father of the child, had taken up
employment abroad and he resides at Saudi Arabia. He has re-
married and has two children born in such latter wedlock.
3. The mother of the child Anjana Hassan went to U.S in
search of employment. She, after divorce, has contracted a
Mat. Appeal No.1011 of 2009 -: 3 :-
second marriage with her present husband Mohammed Rafi by
name. That marriage took place on 03/11/2006 (notwithstanding
the innocuous typist’s devil in the petition which showed the date
of marriage as 11/03/2006 – it is submitted that following the
practice in the U.S, the date and month of re-marriage appear in
the reverse order). The child continued to be educated here in
Kerala living with her grandparents. It is submitted that the
mother of the child Anjana Hassan has become pregnant in the
second marriage and has now given birth to a male child.
4. It is at this juncture that the grandparents went
before the Family Court with an application to appoint the
mother of the child and her step father as joint guardians to
enable them to take the child to U.S to continue her education.
To enable the mother and the step father to take the child to U.S,
they had applied for U.S visa and they were directed by the
officials to get an order of court showing the mother to be the
legal guardian entitled to custody and the step father to be the
joint guardian. It is accordingly that O.P.(G&W) No.359/09 was
filed before the Family Court, Thiruvalla.
5. The petitioners/grandparents submitted that they
were becoming old. They are not able to effectively manage the
Mat. Appeal No.1011 of 2009 -: 4 :-
affairs of the minor child. The child was growing. The child is
likely to attain puberty shortly. The child requires the care and
custody of its mother at this juncture and in any view of the
matter, the mother was in the best position to act as the
guardian and keep custody of the child. To satisfy the demand of
the visa officials, the step father was shown as the proposed joint
guardian. He expressed his consent to so act by filing Ext.A16
joint declaration along with his wife.
6. Service could not expeditiously be effected on the
respondent and this obliged the petitioners/appellants to come
before this court with W.P.C.No.20687/2009 for directions
regarding service. Necessary interim directions were issued as
per order dated 23/7/2009 and the matter was finally disposed of
by judgment dated 20/8/2009. Later, the respondent came
before this court with a review petition. By order dated
02/11/2009, the said review petition was also disposed of.
Copies of these orders/judgment are produced as Annexures 1,3
and 5 along with this appeal. The appellants submitted that in
the interests of the educational requirements of the child
emergent orders were necessary. Considering the need for
emergent and expeditious disposal, time bound directions were
Mat. Appeal No.1011 of 2009 -: 5 :-
issued by this Court.
7. The efforts to effect service appear to have borne fruit
and a learned counsel appeared before the court below on behalf
of the respondent on 22/09/2009. In compliance with those
directions, the Family Court finally proceeded to pass the
impugned order on 11/11/2009. The petition filed by the
grandparents was dismissed by the impugned order. Aggrieved
by that order, the grandparents have preferred this appeal.
8. After the passing of the impugned order, O.P.(G & W)
No.35/2010 was filed by the respondent herein before the Family
Court, Thiruvalla claiming custody of the child for himself. By
order dated 23/3/2010 in I.A.No.437/2010, this Court (another
Bench) had stayed the further proceedings in the said O.P.
9. Before us, the learned counsel for the appellants/grandparents and the respondent/father have advanced their arguments. The learned counsel for the
appellants submits that the Family Court did not realistically
take into consideration the interest of the minor child. It is a girl
child. The girl has not attained puberty yet. She has completed
the age of 11 years, she having been born on 14/4/1999. At this
stage of life of the minor child, the minor child badly needs the
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company and presence of her mother. The court below
proceeded to dismiss the application without taking note of the
plight of the appellants/grandparents, the situation in life of the
minor child as also the inability of the appellants, persons of
advanced age to effectively manage and look after the minor
child.
10. The learned counsel for the respondent, on the
contrary, submits that the conclusion of the court below and the
impugned order rejecting the application is absolutely justified.
According to the learned counsel for the respondent, the
respondent did not get effective opportunity to advance his case
before the Family Court. He was denied reasonable
opportunity to adduce evidence in support of his case. This has
resulted in great prejudice and hardships to the respondent. The
respondent, in these circumstances, has filed O.P.(G&W)
No.35/10. The learned counsel for the respondent prays that the
impugned order may be set aside and the court below may be
directed to dispose of the matter afresh in accordance with law.
The learned counsel further prays that after remand, the court
below may be directed to dispose of the O.P. along with O.P.
(G&W) No.35/10 giving all the contestants adequate opportunity
Mat. Appeal No.1011 of 2009 -: 7 :-
to plead and establish their respective case.
11. We have considered the detailed submissions made by
both counsel. We do not think it necessary to express our final
opinion on the contentions raised. We are satisfied that
directions must be issued to the court below to dispose of the
matter afresh after setting aside the impugned order. We find
merit in the contention that the respondent has not been given
effective opportunity to substantiate all his contentions.
Interests of justice, we are satisfied, shall be served ideally by
issuing appropriate directions for fresh disposal of the O.P. along
with O.P.(G&W) No.35/10.
12. We take note of the submissions of the learned counsel
for the appellants that though the mother of the child was sought
to be arrayed as an additional petitioner by filing I.A.No.3056/09,
the said application was dismissed by the court below. We are
not satisfied with the reasons shown for the rejection of the said
prayer for impleadment of the mother of the child as 3rd
petitioner are sufficient or justified. We are satisfied that the
said petition deserves to be allowed. The mother of the child
must be permitted to get impleaded. Accordingly, we set aside
the order in I.A.No.3056/09 and direct the court below to
Mat. Appeal No.1011 of 2009 -: 8 :-
implead the mother of the child Anjana Hassan as the additional
3rd petitioner and give her opportunity to raise all her
contentions and adduce evidence. It is admitted that in O.P.
(G&W) No.35/10 filed by the respondent, the mother of the child
has been arrayed as respondent and in these circumstances, we
are satisfied that it is only fair and reasonable, in the interests of
proper and effective resolution of the dispute and disposal of the
petitions, that the mother must be permitted to come on record
as the additional 3rd petitioner in the O.P.
13. One question remains to be considered. What
arrangements are to prevail till the O.Ps. are disposed of afresh
by the court below? We had requested the counsel to advance
arguments on this aspect. The learned counsel for the
appellants submits that there is immediate necessity to pass
interim orders regarding the guardianship and custody of the
minor child. Its grandparents, who have been keeping the child
in their custody as acknowledged under Ext.B1, have expressed
their inability to effectively manage and look after the child now.
The learned counsel for the appellants submits that even prior to
Ext.B1 the child was in their custody. Be that as it may, that
dispute does not appear to be too relevant for the present
Mat. Appeal No.1011 of 2009 -: 9 :-
context. The child, as we have already noted, has passed the
age of 11 years and the on set of puberty is expected. The
learned counsel for the appellants argues and we agree that, at
this juncture, in the life of the minor child she needs the care,
custody and patronage of her mother the most. When the
mother is available and there is no disqualification for the
mother, we are unable to locate a person more competent to
keep the custody of the child than the mother of the child.
14. The learned counsel for the respondent submits that
the mother had never taken care of the child; that she had left
the child with the maternal grandparents of the child; she has
only been visitor to the child on occasions and that she has
admittedly got re-married to a stranger. Counsel argues that if
the mother is appointed as the interim guardian entitled to keep
the custody of the child and take the child to the U.S., the child
will virtually have to remain under the protection of the stranger
step-father. It is further contended that in that event the right
of the natural guardian – the respondent father, to effectively
supervise the development of the child will also be frustrated.
The learned counsel for the respondent further argues that the
child will be exposed to totally alien culture and that would be
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disadvantageous to the development of the child. The learned
counsel for the respondent goes one step further and argues that
there is no legal marriage between the mother of the child and
Mohamed Rafi with whom she resides. We have incidentally
referred to this contention as we note that even in the counter
statement such re-marriage of the mother of the child is
practically conceded. We find no merit in that contention at this
stage, considering the state of the pleadings.
15. The court below, unfortunately we note, had relied
upon the circumstance that the minor child’s wishes were not
ascertained. It was for the court to ascertain the wishes of the
minor child. A court which had not wanted to ascertain the
wishes of the child is not justified in using it as a ground against
either party to deny the claim of custody. Taking note of the
said observations in the impugned order, we wanted the child to
be produced before us. We have interacted with the child and
we are convinced and satisfied that the child wants to be with its
mother. That informed choice of the minor aged above 11
years shall also weigh with us while considering what
arrangements should be made till the O.Ps. are disposed of
afresh.
Mat. Appeal No.1011 of 2009 -: 11 :-
16. The learned counsel for the respondent offers to keep
the child in his custody and do the needful as the guardian in
custody. According to him, he was always willing to take the
child in his custody and the grandparents with whom the child
continues under Ext.B1 had never informed him of any inability
on their part to effectively manage the child. He raises a further
grievance that he was not given opportunity to interact
sufficiently with the child on earlier occasions. He has
admittedly raised no such grievance before any one prior to the
filing of the petition.
17. The learned counsel for the appellants submits that
immediate arrangements are to be made regarding the custody
of the child as the schools are to re-open shortly in the U.S. and
any further delay is likely to interrupt the educational curriculum
of the child. Till the child is taken by its mother to the U.S., the
appellants agree to look after and keep the custody of the child.
It is submitted that the maternal grandmother of the child also
proposes to go with the child to the U.S. and is expected to be
with the child and its mother for a long time.
18. Having rendered our very anxious consideration to all
the relevant facts and circumstances, we are certainly of the
Mat. Appeal No.1011 of 2009 -: 12 :-
opinion that the interests of the welfare of the child will be best
served by entrusting the interim custody of the child to the
mother of the child Anjana Hassan subject to appropriate terms
and conditions. The fact that she has remarried is, according to
us, by itself not a sufficient ground to reject her claim for interim
custody. That the father is the natural guardian is also not
reckoned by us as a sufficient reason to entrust the child to the
custody of the father. He admittedly is employed abroad. He
admittedly has re-married and he has two children in such later
wedlock. We have taken note of the wishes and informed
preferences of the child also. We have looked at the question
from the point of view of the educational requirements of the
child. Above all, we take note of the fact that the child, who is
likely to attain puberty within a short period of time, deserves to
be in the custody of her mother notwithstanding the fact that the
mother has contracted re-marriage after divorce and has a child
in such wedlock. The status and position of the mother as a
qualified Doctor employed abroad is not disputed also.
19. In the result:
(a) This appeal is allowed in part.
Mat. Appeal No.1011 of 2009 -: 13 :-
(b) The impugned order is set aside.
(c) The court below is directed to dispose of O.P(G&W)
No.359/09 afresh.
(d) The court below is directed to dispose of O.P.(G&W)
No.359/09 by holding a joint trial along with O.P.
(G&W) No.35/10.
(e) I.A.No.3056/09 is allowed and Anjana Hassan – the
mother of the minor child, is directed to be impleaded
as the additional 3rd petitioner in O.P.(G&W)
No.359/09.
(f) The court below shall dispose of O.P.(G&W)
No.359/09 and O.P.(G&W)No.35/10 afresh after
giving the parties full opportunity to amend their
pleadings, file the requisite statements and adduce all
further evidence.
(g) As the father and the mother of the child are abroad,
the court below shall post the case in such manner as
to give reasonable opportunity to both the father and
the mother of the child to come to India and adduce
appropriate evidence. Reasonable time shall be given
to both sides to the extent possible. The convenience
Mat. Appeal No.1011 of 2009 -: 14 :-
of the parents of the child shall be ascertained and
they shall be given effective opportunity to appear
and give evidence. As effective interim arrangements
are made, time bound directions for disposal are not
being issued. We have taken note of the grievance of
the respondent that such time bound direction,
notwithstanding the clarification in the order dated
2/11/09 in the Review Petition, has resulted in
miscarriage of justice.
(h) The court below shall dispose of the matter afresh
untrammelled by any observations/findings in the
impugned order or the expressions of opinion made
by us in order to ascertain the person most suitable to
keep the interim custody of the child. In short, the
matter must be disposed of afresh as a totally fresh
matter by the court below.
(i) Until the O.Ps. are disposed of afresh, we direct that
the mother of the child – Anjana Hassan shall function
as the interim guardian entitled to the custody of the
child. She will be entitled to take the child to her
place of residence in the U.S. She shall undertake
Mat. Appeal No.1011 of 2009 -: 15 :-
to produce the child before the Family Court during
all annual vacations. During such annual vacations
when the child is in India, the respondent/father shall
be permitted to have interactions with the child.
Appropriate directions from time to time can be given
by the Family Court regarding the custody/visitorial
rights of the child during such vacations.
(j) Before taking the child out of India, the mother of the
child Anjana Hassan shall execute a bond for
Rs.3 lakhs (Rupees Three lakhs only) with two solvent
sureties each for the like sum to the satisfaction of the
Family Court undertaking to abide by the directions
to be issued by the Courts from time to time
regarding the custody of the child.
(k) Needless to say, such directions shall be issued only
consistent with the educational requirements of the
child and taking into account the availability of the
respondent in India during the relevant time. The
mother of the child shall inform the respondent/his
counsel about the vacation during which the child can
be brought to India. The respondent shall inform the
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mother of the child through counsel about the time
that the respondent shall be available in India.
Appropriate directions can be sought from the Family
Court about the date on which the child is to be
brought to India and the manner in which the
expenses for the same has to be met by the parties.
(l) Original passport of the child is admitted to be in the
custody of the father. He shall surrender the same
before the Family Court immediately – at any rate,
within a period of 15 days to enable the Family Court
to hand it over to the interim guardian so that
arrangements can be made to take the child to the
U.S. as already directed. It shall be open to the
parties to apply for and get return of the original
passport produced before the Family Court
immediately. Sd/-
R. BASANT
(Judge)
Sd/-
M.C. HARI RANI
(Judge)
Nan //true copy// P.S. to Judge