AGAINST THE JUDGMENT IN O.P.(GUARDIAN) 1293/2012 of FAMILY COURT, IRINJALAKUDA, Kerala
When the trial was in progress, the 1st respondent (father) died in a motor accident and thereupon the 2nd and 3rd respondents (parents of father) were impleaded as additional petitioners and the trial continued in Family Court.
The family court had framed two main points for consideration:
(2.1) Whether grand-parents are entitled to get permanent custody of their minor grand daughter from daughter in-law?
(2.2) Who will be the proper custodian of the minor child?
As the natural guardian (father) of the child is no more, the respondent mother is declared as the natural guardian of minor child. However the Family court had granted visitation rights to grandparents every alternative 3rd Saturdays from 9 a.m., till 9 a.m. of the succeeding Sundays.
Apart from the above, 3 days interim custody was granted during 'Onam' and 'Christmas' holidays and 10 days during mid-summer vacation. Further the respondents 2 and 3 were provided with custody of the child on the death anniversary date of the 1st respondent and also on the 3rd Sundays after Easter, in connection with the festival of their Parish Church. Even while granting the said interim custody, a rider was added to the effect that they are entitled to get such interim custody only if they bear the entire educational expenses of child.
The said arrangement will continue till the child attains the age of 8 years.
It is aggrieved by the said visitation rights granted to respondents 1 and 2, by family court the appeal is preferred in HC.
Main contentions advanced by learned counsel for the appellant are that, the respondents 2 and 3, who are the grandparents are entitled only for a visitation right and they are not entitled to get interim overnight custody of the child, as ordered by the Family Court. That the order of the Family Court providing temporary custody to the grandparents is illegal and arbitrary, especially when there are no justifiable circumstances put forth by the respondents 2 and 3, in evidence before the Family Court to establish their claim for interim custody.
On the other hand, learned counsel for respondents 2 and 3 contended that, since their son is no more, they are entitled to have at least the interim custody of the child and to express their love and affection to the child, which will be conducive to the health, welfare, wellbeing and growth of the child.
Learned counsel for the appellant even though vehemently argued that the Guardian and Wards Act does not recognize an overnight custody of children to the grandparents, he could not point out any specific provision under the Act to sustain the said contention. On the other hand, the Act enables and recognises the right of others on securing permission from court
We find that the minor girl child was aged only 11 months at the time of filing the application in the year 2012 and at present the child is only at the most 4 years old. Therefore we are of the considered opinion that, if the custody of the child is handed over to respondents 2 and 3 all on a sudden, without there being any acquaintance and intimacy built up with the grandparents, it may not be conducive for the child to be in their custody and to spend time at the house of the respondents 2 and 3, that too on an overnight basis. Creating such a situation may not be within the interest, welfare and well being of the minor child. Therefore, we feel that overnight custody of the child can be stepped up in a slow pace and the day time custody of the child can be increased in a phased manner
The above said arrangements will continue for a period of two years and thereafter respondents 2 and 3 are entitled to take custody of the child on every 1st and 3rd Saturdays from 9 a.m. to 11 a.m. of the succeeding Sundays. Likewise, they are also entitled to get overnight custody of the child for a period of 5 days each during Onam and Christmas holidays and 15 days during first half of the mid-summer vacation, apart from the death anniversary date and 3rd Sundays after Easter provided above. The said arrangements will continue till the child attains the age of 8 years as directed by the Family Court. Arrangements with regard to the handing over of the child and resumption of custody, and other directions issued by the court below are sustained.