APPU AND OTHER Vs. RAJEEV KUMAR

JUDGEMENT

(1.) This appeal is filed by the respondents in GOP 1299/2014 in a petition to appoint the respondent herein as the guardian of a minor male child and for permanent custody. By the impugned order dated 16/1/2017, the Family Court, Thrissur had appointed the respondent as guardian of the person of the minor child and permanent custody has been given to him. However, visitation rights had been permitted as far as petitioners herein are concerned. Aggrieved by this order, the appeal is filed by the respondents in the OP. Parties are referred to as shown in the original petition.

(2.) The petitioner in the original petition is the father of the minor male child aged 5 years. The marriage between the petitioner and late Liji was held on 4/6/2008 as per Hindu custom religious rites and ceremonies. A child was born in the wedlock on 5/12/2011. The respondents are the maternal grand parents of the minor. In the petition it was contended that his wife was a diabetic patient and her condition deteriorated even after prolonged treatment and she died on 27/7/2014. After the completion of the ceremonies relating to the death of his wife, though he wanted to take the child to his place of residence, it was not permitted by the respondents. It is submitted that the intention of the respondents is to keep away the child from them and he being the father is the natural guardian and is entitled to be appointed as guardian and he also sought for permanent custody. The respondents submit that it may not be possible for the petitioner to look after the child properly. It is further contended that petitioner is a chronic drunkard and he had ill-treated their daughter physically and mentally as a result of which she had become a patient. When she was pregnant, the petitioner insisted that she should undergo an abortion. He had even assaulted her and she was taken to a hospital and due to the continuous physical and mental cruelty, their daughter had mental tension. According to them, they have every means to bring up the child and therefore they sought for dismissal of the petition.

(3.) Before the Family Court, 2 witnesses were examined on the side of the petitioner and two witnesses on the side of the respondent. Petitioner relied upon Exts.A1 to A10 and respondents relied upon Exts.B1 to B22. After evidence was adduced in the case, the Family Court observed that the couple after marriage was residing at Jharkhand for 6 to 7 months where she became pregnant and she was brought back to her native place. Again she was taken to Jharkhand in 2010 and he returned when he lost his employment. The reason for returning was that she was suffering from chronic diabetes and the treatment at Jharkhand was not effective. Exts. A1 to A8 are the medical records for treating his wife which would apparently show that she was diagnosed to have diabetes and she was on insulin. Family Court therefore found that the allegations raised against the petitioner was not proved and she had given birth to a child without any complication at all. On an overall consideration of the evidence adduced it was rather found that the relationship between the parties were strained and it reached a stage where a lawyer's notice was issued requesting her to come and reside with the petitioner. However, the relationship did not improve and finally after the death of Liji, the child was not handed over to the petitioner. Therefore he filed a police complaint, a copy of which is produced as Ext.A10. It is rather clear that the petitioner is the natural guardian of the minor and there is no reason that he should be denied the right to take care of the minor child. The only question to be considered is regarding the welfare of the minor child. Though allegations are made against him that he is a drunkard, there is no evidence to prove the aforesaid fact. Further, evidence shows that petitioner is residing with PW2 in the same building which is his tharavadu house. Evidence also indicates that there are other members in the family to take care of the child even if he goes for employment. Therefore, the Family Court after a detailed consideration of the evidence found that the father being the natural guardian is entitled to be appointed as guardian of the minor and that he is entitled for custody. In so far as the appellants herein are only grand parents and visitation rights had already been given, we do not find any infirmity in the order which warrants interference by exercising the appellate jurisdiction. When the welfare of the minor child is being considered, unless there are circumstances which would tend to prove that residence of the minor child with the father is not conducive to his welfare, the Court normally shall not interfere with the custody of the child with the father especially when the mother is no more. In the present case, though the appellants have expressed certain apprehension regarding his conduct, as already indicated, there is nothing to prove the said facts whereas the Family Court has considered the entire factual aspects involved in the matter and had arrived at a finding that residence with the father will not cause any difficulty for the minor child and the welfare of the minor child will not be affected on account of such residence. Taking into account the aforesaid facts, we do not think that a case has been made out for interference in the matter.