NISHA Vs. UNNIKRISHNAN

JUDGEMENT

(1.) THIS Original Petition is filed under Article 227 of the Constitution of India with the following prayer:

(2.) THE facts of the case are briefly as follows. THE respondent herein filed O.P.No.511 of 2008 before the Family Court, Malappuram against the 1st petitioner herein, for custody of the child born in the wedlock between them. THE matter in dispute was settled by filing a joint statement between the respondent herein (petitioner) and 1st petitioner herein (respondent), wherein it was agreed that from 23.11.2008 on all Sundays at 9 a.m., the respondent therein (mother) would hand over the minor child then aged 3 years to the petitioner(father) and he would hand over custody of the child the next day at 9 a.m. and that if there was any default in payment of maintenance amount by the petitioner therein, the agreement need not be adhered by the respondent therein. That Original Petition was allowed in terms of that joint statement.

(3.) LEARNED counsel for the petitioners submitted that the Family Court passed the impugned order without considering the welfare of the child, who is a female child aged 7 years. LEARNED counsel for the petitioners further submitted that the first petitioner has not converted into Islam and that she married one Ali under the Special Marriage Act after the dissolution of the marriage between the first petitioner and the respondent. LEARNED counsel for the petitioners submitted that the respondent has not paid the entire arrears of maintenance to the minor child and that in the order under challenge there is no provision for any visitation rights. LEARNED counsel for the respondent supported the order under challenge and submitted that the first petitioner can be granted the visitation rights to see the child during the day time and that the respondent is prepared to deposit the entire arrears of maintenance due to the minor child.