RASHA Vs. AJMAL

JUDGEMENT

(1.) <FRM>JUDGEMENT_480_LAWS(KER)8_2012.htm</FRM>

(2.) 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. 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.) 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.