BUSHARA Vs. SHIBINU

JUDGEMENT

(1.) The appellant herein (Bushara/wife) is the respondent in OP (G & W) No. 2192/2013 filed before the Family Court, Attingal, by the respondent herein (Shibinu/husband) with the prayer for permanent custody of his minor son after declaring him as the guardian. The marriage between the appellant herein (wife) and the respondent herein (husband) was solemnised in accordance with the customs and rites of Muslim community and a son was born in their wedlock. The marriage got strained and the respondent herein (husband) pronounced talaque on the appellant herein (wife) on 16/03/2013. Thereafter, the respondent herein (husband) filed the above said original petition before the Court below for declaring him as the guardian of the minor son and for his permanent custody. The Court below held that, as per Section 352 of the Mohammedan Law, the mother is entitled to the custody of the minor male child until he has completed the age of 7 years and that it is settled law that the Court has discretion to pass appropriate orders overlooking such personal law in the light of the provisions of the Guardians and Wards Act and that the Court below finds no reason to disqualify the mother to have custody of the minor son until he completes the age of 7 years and that orders passed in respect of custody of the child can be altered in change of circumstance. The Court below specifically considered the issue as to whether the father is capable of taking care of the child, keeping in view his employment responsibilities and came to the conclusion that the father, who is working in Malappuram District, will not be able to look after the affairs of the minor child when compared to the mother, who is not employed. For that reason the Court below reached the considered conclusion that for the time being the permanent custody of the child cannot be given to the father and that there is no necessity to grant a declaration as prayed for. But the Court below granted certain limited visitation rights and custody of the minor child to the respondent herein (husband) during Onam, X'mas and summer vacation of the school etc. The Court below held in the impugned judgment as follows:

(2.) Though the appellant herein (wife) succeeded predominantly in the litigation before the Court below, she has chosen to institute this matrimonial appeal by projecting that she is aggrieved by the impugned judgment to the limited extent that it permits visitation rights and interim custody of the minor child during holidays in favour of the respondent herein (husband).

(3.) Heard Sri. Dinesh, the learned counsel for the appellant herein (wife) and Sri. M. Sreekumar, learned counsel appearing for the respondent herein (husband) through caveat.