BIJI AND ORS. Vs. VIJIL AND ORS.

JUDGEMENT

(1.) This appeal is preferred by the respondent/wife against the judgment in GOP No. 1293 of 2012 of the Family Court, Irinjalakuda, dated 06/02/2016. By the impugned judgment the Family Court has declined permanent custody of the minor child to 2nd and 3rd respondents who are the parents of the 1st respondent husband, but granted visitation rights. It is challenging the visitation rights permitted to respondents 2 and 3, this appeal is preferred. The 1st respondent husband is no more. Brief facts required for the disposal of the appeal are that; the 1st respondent has filed the Original Petition seeking an order of permanent custody of the minor child, Anushka, aged 3 years. When the trial was in progress, the 1st respondent died in a motor accident and thereupon the 2nd and 3rd respondents herein, who are his parents, were impleaded as additional petitioners and the Trial continued with them in the array of petitioners. The child was only 11 months old when the Original Petition was filed. The Original Petition was filed before the Family Court, Thrissur. Subsequently, consequent to the establishment of Family Court, Irinjalakuda the same was transferred to the said Court and re -numbered.

(2.) Contentions raised by the 1st respondent seeking permanent custody of the minor child are that, marriage between the 1st respondent and the appellant was solemnized as per Christian religious rites on 17/01/2010. A girl child was born in the wedlock on 13/03/2011, later named Anushka. That the appellant belongs to a poor family and that she had received only 15 sovereigns of gold ornaments as gift from her parents. When the baptism of the child was conducted, 7 sovereigns of gold ornaments were given to the child by his family members and the entire gold are under the exclusive possession and enjoyment of the appellant, that the appellant filed an Original Petition before the Family Court, Thrissur alleging that 1st respondent and his parents had misused her ornaments. Appellant had also filed MC No. 159 of 2011 before JFCM Court, Irinjalakuda, seeking maintenance and accordingly an amount of Rs. 3,000/ - each was ordered as maintenance to the appellant and the minor child. There was yet another case instituted at the behest of the appellant against the 1st respondent alleging offence punishable under Sec. 498(A) of the Indian Penal Code. It is also contended that 1st respondent was continuously paying maintenance to the appellant and the minor child. That appellant left the matrimonial home with the minor child without any sufficient cause. The child needs love and affection of the 1st respondent. Access to the child was denied to the 1st respondent and that appellant was not caring the minor child. It is also contended that the 1st respondent has sufficient financial and other background to look after the child. Since the 1st respondent being the natural guardian of the minor child, he is legally entitled to be declared so. Even though the 1st respondent went to the house of the appellant with Christmas presents and sweets during December, 2011, he was not even permitted to see the child and the Articles were thrown away. It is also contended that the neighbours are all witnesses to the said incident.

(3.) Yet another contention advanced by the 1st respondent is that, on 02/08/2011 the child fell ill and the 1st respondent advised the appellant to bring the child to hospital for treatment, but she has not cared to do so. Consequent to which, the illness of the child became worse and thereupon the 1st and 3rd respondents took the child to the hospital for treatment. It is also contended that on account of that vengeance, appellant picked up quarrel with the 1st respondent and left the matrimonial home along with minor child. Though 1st respondent had made his earnest efforts to bring back the appellant and the child, due to the adamant stand adopted by the appellant the same did not fructify. Therefore, the 1st respondent seeks permanent custody of the child for the welfare and protection of the minor.