VELAYUDHANKUTTY AND ORS. Vs. C.P. SUDHEER

JUDGEMENT

(1.) A common order passed by the Family Court, Thrissur in GOP. Nos. 2142/2012 and 1785/2013 is under challenge in this appeal filed by the petitioners before the Family Court in GOP. No. 2142/12. The respondent herein is the respondent in the said case. The issue involved is with respect to custody of two minor children viz. Niranjan, born on 5.2.2003 and Niveditha born on 30.1.2007, out of the wedlock between the respondent herein and the deceased daughter of the appellants, Smt. Anjaly, who died on 2.7.2007 at the matrimonial home due to the burn injury sustained. GOP. No. 2142/2012 was filed by the appellants who are the maternal grand parents seeking appointment of them as legal guardian of the minor children. The respondent had also filed GOP. No. 1785/13 seeking permanent custody of the children. The Family Court considered both the cases together and disposed of them through the impugned order. GOP. No. 1785/13 filed by the respondent herein was dismissed, whereas GOP. No. 2142/12 filed by the appellants were allowed to the extent of granting permanent custody of the minor children to them, subject to reserving liberty to the respondent to have custody of the children on the 2nd weekend of every month, between 10 a.m. on the 2nd Saturdays and 5 p.m on the succeeding Sundays. So also it was ordered custody of the children to the respondent during half period of the summer vacation, Onam, Pooja and Christmas holidays. It is aggrieved by the arrangement of interim custody ordered in favour of the respondent, the above appeal is preferred.

(2.) Contention of the appellants is that, the granting of interim overnight custody of the minor children to the respondent was ordered without properly appreciating the factual aspects and the evidence on record. It is contended that the Family Court ought not have made any such arrangement, after ascertaining wishes of the minor children, who were not at all interested to go along with the respondent. It is contended that since children are of the age of 12 years and 8 years respectively, they are at the age of proper understanding and are able to express their preferences, which the Family Court had failed to give weightage. It is also contended that the arrangement ordered is without taking note of the agreement entered into between the parties as early as in the year 2008, wherein the respondent had relinquished custodial rights over the children and consciously surrendered his right for the custody of the children. It is contended that the observations made by the Family Court to the extent of disbelieving the complaint submitted as Ext. A6, was totally unwarranted and baseless. It is a matter which is under the investigation of police and that the Family Court ought to have taken the view refraining the respondent from having overnight access to the children, atleast until the investigation based on Ext. A6 complaint is finalised.

(3.) Learned counsel for the appellants had raised vehement arguments based on Ext. A6 complaint and based on the alleged reinvestigation being conducted in Crime No. 264/2007 of Valancherry Police Station, registered with respect to death of the mother of minor children. It is pointed out that the said criminal case was registered implicating the respondent as accused for offences punishable under Ss. 306 and 498A IPC. Admittedly, the said case ended up in an acquittal, by virtue of Ext. A3 judgment of the Assistant Sessions Court, Tirur in SC 74/2008 dated 14.10.2008. It is evident that Ext. A1 agreement with respect to custody of the child was arrived between the parties during October 2008 itself. Contentions of the appellants are to the effect that, a reinvestigation of the said case is now being pursued on the basis of Ext. A6 complaint submitted by the 2nd appellant before the police authorities. In Ext. A6 complaint the 2nd appellant had stated that, the elder child had made a revelation that the respondent had immolated his mother. It is stated that he had witnessed the respondent pouring Kerosene on her. It is argued that the Family Court went highly erred in finding that the contents of Ext. A6 complaint is not true and correct. According to the appellants, the Family Court had omitted notice of the necessity to keep the minor children from access of the respondent, until the reinvestigation is culminated. Therefore it is argued that interim arrangement of overnight custody ordered by the Family Court need to be modified.