ASKAR ALI Vs. MOHAMMED ALI HAJI

JUDGEMENT

(1.) This appeal is filed by the petitioner in I.A.2334/10 in O.P.338/2010 on the file of the Family Court, Palakkad. That I. A. was filed by the petitioner in the Original Petition under Section 12 of the Guardians and Wards Act, 1890 (for short, 'the Act') for interim custody of the minor. The respondents herein are the respondents in that I. A. and Original Petition.

(2.) The appellant/petitioner is the father of the minor child Asbah Fathima, aged 2 years. According to the petitioner, the child was removed from his custody and is not being brought up ensuring her welfare and hence custody has to be handed over to him. The child is very much attached to him and he is having emotional problems also. The respondents 1 and 2 filed counter statement contending that the Family Court, Palakkad has no jurisdiction to entertain the O.P. and further contending that the mother of the minor child Femina died on 17.11.2009 and it was an unnatural death and that the death is a homicide. A complaint was registered and F.I.R. was originally registered under Section 174 of Criminal Procedure Code which was converted to one under Section 304B and 306 read with Section 34 I.P.C. It is further contended that a Muslim female chi Id who is under puberty and devoid of her mother due to death or separation from her father should be given in the custody of mother's mother as per Muslim Personal Law. In this case, the second respondent is the maternal grandmother of the child in question who is now looking after the minor child by providing all benefits for the welfare of the child. They are presently residing at Melattur in Malappuram District and the matter can be entertained only by the Family Court at Malappuram.

(3.) In the I. A., the question of jurisdiction was considered as a preliminary issue by the Family Court, Palakkad. The Family Court found that the said court has no jurisdiction to entertain the Original Petition and that the Family Court, Malappuram alone has jurisdiction to entertain the Original Petition and on the basis of that finding, that I. A. was dismissed. Against that order, the petitioner in the I.A. filed this appeal.