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