LEKHA Vs. P ANIL KUMAR

JUDGEMENT

(1.) Leave granted.

(2.) The present appeal is directed against the order of the High Court of Kerala allowing matrimonial appeal for the custody of the child of the respondent by reversing the finding of fact arrived at by the trial Court. The trial Court, after considering the evidence on record and interviewing the child, came to the conclusion that for the welfare of the child the custody should be given to the mother and dismissed the original petition of the respondent-father filed under the Guardians and Wards Act holding that he is not entitled for the custody of the child. On appeal, the High Court reversed the finding of the trial Court and directed to give the custody of the child to the father without interviewing the child. The High Court also permitted the respondent to take the child to Gulf. BACKGROUND FACTS:

(3.) The marriage between the appellant and the respondent was solemnized on 31.01.1994 as per Hindu religious rites and customs. Out of the said wedlock, a son, namely, Rohit Vishnu was born and he is 12 years old now. At the time of marriage, the respondent was employed abroad. After marriage the appellant and the respondent lived together for 2 1/2 months and thereafter they lived separately because of the misunderstanding between them. Since the harassment and cruelty of the respondent crossed the extreme extent, the appellant was compelled to file a petition for divorce on the ground of cruelty. The respondent filed a petition for restitution of conjugal rights against the appellant. Thereafter, the respondent filed an original petition under the Guardians and Wards Act for the custody of the 11 years old minor child. The main allegation of the respondent was that the appellant was having illegal intimacy with another person. The second contention was that if the child is in the company of the appellant, it would affect the education of the child. The respondent also contended that he is financially better than the appellant and hence the custody of the child be given to him. The appellant defended the matter and filed a written statement denying all the allegations.