SHAHARBAN Vs. BUHARI VALAPPIL

JUDGEMENT

(1.) THE main prayer in the above Original Petition filed under Article 227 of the Constitution of India is to set aside the order dated 15.6.2012 in I.A.No.1020 of 2012 in O.P.No.200 of 2011 on the file of the Family Court, Malappuram.

(2.) THE facts of the case are briefly as follows : The petitioner herein is the respondent in I.A.No.1020 of 2012 in O.P.No.200 of 2011 on the file of the Family Court, Malappuram. The first respondent herein married the petitioner on 18.3.2007 and he pronounced Talaq on 6.9.2010 while he was abroad. The first respondent herein married another lady by name Sakeena on 11.11.2011. O.P.No.200 of 2011 was filed by the respondents 1 and 2 herein under the provisions of Guardians and Wards Act, 1890, praying for the custody of the minor son (Ajanas Muhammed, aged 2 = years) of the petitioner and the first respondent for 2 hours on two days in a week. The second respondent herein is the mother of the first respondent and paternal grandmother of the minor child. I.A.No.1020 of 2012 in O.P.No.200 of 2011 is filed by the first respondent in that Original Petition under Section 12 of the Guardians and Wards Act for getting custody of the child for two weeks. As per the order in I.A.No.1020 of 2012 dated 15.6.2012, the respondent in the application was directed to hand over the custody of the child to the petitioner for two days, once in a month, i.e., first Monday and Tuesday (from 10 a.m. on Monday till 5 p.m. on Tuesday). Against that order, the respondent filed the above O.P.(FC).

(3.) IN O.P.No.200 of 2011, the petitioners therein filed several interlocutory applications for interim custody of the child. As per the order in I.A.No.2460 of 2011 dated 9.12.2011, the Family Court, Malappuram directed the Station House Officer of Tirur Police Station to hand over the custody of the minor child to the first petitioner therein. Against that order, the respondent in that I.A. filed O.P.(FC) No.4160 of 2011 before this Court. As per order dated 10.1.2012 in O.P.(FC) No.4160 of 2011, this Court directed the petitioner in that O.P.(FC) to give custody of the minor child to the respondents 1 and 2 by making available the child in the office of the Advocate, whom the petitioner will engage, between 3 p.m. and 5 p.m. on all Sundays and Thursdays, starting from 15.1.2012, unless a different time is intimated by the Advocate to the respondents 1 and 2. Due to some developments subsequent to that order, the petitioner in that O.P.(FC) filed R.P.No.113 of 2012 before this Court and as per the order dated 29.2.2012 in the Review Petition, this Court directed the petitioner to make available the child in the office of Advocate M.A.Ismail, Tirur, between 3 p.m. and 5 p.m. on Mondays and Thursdays and the order in that O.P.(FC) was modified in the above lines. In the order in I.A.No.1020 of 2012, the learned Family Court made a reference to the order of this Court passed in R.P.No.113 of 2012 in O.P. (FC) No.4160 of 2011. The Family Court has not given any sufficient reason for modifying the order passed by this Court in the Review Petition. Therefore, we are of the view that the Family Court is not justified in modifying the order passed by this Court in the Review Petition. Accordingly, this O.P.(FC) is allowed and the order in I.A.No.1020 of 2012 in O.P.No.200 of 2011 on the file of the Family Court, Malappuram is set aside. The parties are directed to comply with the order of this Court in R.P.No.113 of 2012 in O.P.(FC) No.4160 of 2011 dated 29.2.2012. It is made clear that if there is any substantial change in the circumstances, the Family Court is at liberty to pass appropriate orders, modifying the order passed by this Court. There is no order as to costs.