SHAKEELA Vs. SHAKEER @ E J JOHN

JUDGEMENT

(1.) Challenge in this original petition filed under Article 227 of the Constitution of India is against an order passed by the Family Court, Thrissur in E.P.No.160/2017 in GOP No.1457/2015. Inter alia, the petitioner is seeking direction to the Family Court to execute Ext.P1 judgment and Ext.P2 decree passed by the Family Court in GOP No.1457/2015.

(2.) The parties herein are wife and husband. The dispute is with respect to custody of two minor children born out of their wedlock, namely Sherin, now aged 12 years and Shibilamol, now aged 10 years. The petitioner herein filed GOP No.1457/2015 seeking for appointment of herself as the guardian of the children and to give her the permanent custody of the children. The Family Court, after taking evidence, decreed the petition appointing the petitioner as guardian of the person of the minor children. It was ordered that the petitioner is entitled to get permanent custody of the minor children, after closing of the academic year 2017-18 (mistakenly noted in the judgment as 2016-17). Till then the children were permitted to continue in the school at Kottayam where they are studying, which is situated near to the house of the respondent. However the petitioner was permitted to have interim custody of the children from 10.00 a.m on the second Saturdays till 5.00 p.m on the succeeding Sundays and during the first five days of Onam and X'Mas holidays. It was specifically directed that once examinations of the children are over, permanent custody shall be given to the petitioner. For the period thereafter, similar visitation rights were granted in favour of the respondent.

(3.) The petitioner approached the Family Court with E.P.No.160/2017 seeking permanent custody of the children alleging that the respondent had failed to comply with the direction to hand over custody of the children, after clossure of the academic year and also alleging that the respondent had failed in complying with the interim arrangement of custody made in favour of the petitioner. On 31.2018, when the matter was considered, the Family Court interacted with the children. It was observed that the children are scared of the petitioner herein and her relatives. Their version is that the petitioner had ill-treated them and they apprehend confinement at the quarters where the petitioner is residing now, if they were compelled to go with the petitioner. They said that they will be happy if the father and mother reside together in Kottayam. The Family Court found that, the respondent was a Christian now converted to Islam and the petitioner is an Islam by birth. But the children told that they are being brought up as Christian and are attending the church. Based on the above aspects, the court below found that, there is no violation committed by the respondent and the children were not given custody only because they were relectant to go along with mother. Even though the petitioner contended that, the decree passed by the court is liable to impleadmented until it is modified or set aside, the Family Court observed that it is not a question of disobedience but it is a case where the children refused to go with the petitioner herein. It was observed by the Family Court that, even if police force is used to take the children to the residence of the petitioner, it will cause more harm than benefit to the children. Hence it was found that there is need to have necessary modification with respect to the decree passed. It is evident that, based on observations made by the court below, the respondent herein had filed an interim application, in the disposed of case (GOP No.1457/2015), seeking modification of the judgment to the effect of giving permanent custody of the children with the respondent herein. It is aggrieved by Ext.P3 order, the petitioner is approaching this court.