Shajahan vs Shaini and Shajin

Pius C. Kuriakose, J.—Under challenge in this original petition filed under Article 227 of the Constitution of India is Ext. P3 order passed by the Family Court, Nedumangad, in IA No. 1058/2011. The above IA was for alteration of the directions in the judgment of the court in OP No. 1103/2008 (Ext. P1 judgment). In Ext. P1 judgment, permanent custody of the two minor girls was given to the mother and the father, the present petitioner, was given only visitation rights during weekends. The petitioner, by filing IA No. 1058/2011, sought for an alteration on the reason that the 1st respondent, the present custodian of the children, is a mentally retarded person, an allegation which was disputed by the 1st respondent. A detailed enquiry was conducted by the Family Court in which the evidence consisted of the oral evidence of PW1, the petitioner; CPW1, the 1st respondent/mother; CPW2, the grandmother of the children. Documents on the side of the petitioner consisted of Exts. A1 to A5 while the same on the side of respondents consisted of Exts. B1 to B13. The Family Court, on evaluating the evidence, came to the conclusion that the evidence adduced by the parties falls short of holding that there has been change of circumstances warranting a change in the order presently passed regarding the custody of the children.

Having gauged Ext. P3 order by the parameters which are applicable for the exercise of visitorial jurisdiction of this Court under Article 227, it is very clear to our mind that Ext. P3 is not liable to be visited by us under Article 227. We approve Ext. P3 and dismiss the original petition.

However, we make it clear that this judgment of ours approving Ext. P3 will not stand in the way of the petitioner applying for variation of the terms and conditions in Ext. P1 later after two years on proving altered circumstances justifying alteration in the conditions and directions in Ext. P1.