Most Important Judgment of Today on Reliance of Character in Questioning Custody of Ward (16th May, 2019)

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Title of the Case – Reliance of Character in Questioning Custody of Ward

Name of the caseSuhara V. Muhammed Jaleel, Mat. Appeal No. 182 of 2019 (Kerala High Court)

Date of Judgment 16th May, 2019

Judges: Justice K. Harilal and Justice TV Anil Kumar

Subject and sections involved POCSO Act and Section 17 of the Guardian and Wards Act

 

Issue:

  1. Whether criminal proceeding initiated against the father under POCSO Act has any relevance and impact in deciding the question of custody of the child?
     

Fact of the Case:

Fact in Brief

The common respondent in both Mat.Appeals is the father of the girl child, Fathimathul Jasla, who was aged only 2 years on the date of institution of original petitions before the court below.

The grand mother of the child filed for a decree of perpetual prohibitory injunction restraining the respondent herein from taking forcible custody of the child from her. The respondent severely opposed the petition.  simultaneously filed a decree claiming permanent custody of the child as against the appellants who are the grand parents of the child and also one of their sons. The Family Court while dismissingfor perpetual injunction chose to decree entrusting the child to the permanent custody of respondent/father subject to the appellants' limited right of visitation of the child once in a month at the premises of Family Court, Ottapalam. Being aggrieved by the common judgment, these two separate appeals were filed.

Both O.Ps were jointly tried by the court below taking up filed by the appellant, grand mother as the main case. The reference in this appeal to the parties, unless the context otherwise indicates, will be as per their rank.

Appellant's daughter Sajna was married to respondent on 2.6.2011. She died at the matrimonial house on 8.5.2015. The marriage, the paternity of child and death of Sajna are not disputed facts in these appeals. According to the appellant, right from the date of death of her daughter Sajna, the child was taken care of and maintained at the house of the grand parents and family. The respondent declined to take care and maintain her as if he was not interested in the child. Sajna is said to have died under suspicious circumstances and therefore, a Crime No.91/2016 under Sections 498A, 304B, 302, 201 and Section 149 of IPC was registered against the respondent by Perinthalmanna Police, at the initiation of her father, PW2 and investigation is in progress. Respondent is alleged to be a drunkard and spendthrift who used to ill treat the deceased Sajna demanding dowry. It is his cruel conduct towards wife that is said to have resulted in her death. Respondent is alleged to be ambitious enough to remarry for his pleasure forgetting that he has a child to look after. He is totally disqualified and unfit to seek permanent custody of the  minor ward. No congenial environment exists in the family of respondent and if the child is allowed to stay with him, it will certainly ruin ward's life. On 23.11.2015, respondent is alleged to have made a vain attempt to remove the child from the custody, but it was foiled. Enumerating these allegations, the grand mother filed a decree of permanent prohibitory injunction.
 

Ratio of the case -

The division bench of Kerala High Court observed that observed that unless there are reliable materials capable enough to convince the allegation of sexual abuse to be well founded, mere registration of crime shall not be reckoned as a ground for rejecting the claim of the parent for custody of the child.

Misuse of POCSO Act

The bench observed in furtherance to the misuse of POCSO Act that "In our opinion, mere registration of a crime under the provisions of the POCSO Act against the parent of the ward is no assurance to a Family Court that allegation of sexual abuse made against him is nothing but true. The allegation made against the biological father could be true in rare cases, but could be wholly false also. The Family Court, before which such registration of crime is proved must necessarily apply its mind and endeavour to find out the true circumstances which activised the registration rather than being allured by the mere fact of registration. Unless a very cautious approach is adopted by the Family Court to ensure that information on which crime was registered is not frivolous and vexatious, many a innocent parent fighting for custody of his own ward would be victim of false implication of crimes under the POCSO Act. There is a growing tendency in the recent years to foist false crimes against the biological father alleging sexual abuse of own child misusing the provisions of the POCSO Act when serious fight for custody of ward is pending resolution before the Family Courts"

Registration of Crime

The bench further observed in reference to the registration of crime against the parent is not a ruse for defeating his legitimate claim for custody of ward that "Family Courts to whose notice registration of crime under the POCSO Act is brought owe an onerous responsibility to ensure that the registration of crime against the parent is not a ruse for defeating his legitimate claim for custody of the ward. The Family Courts ought to examine the outcome of investigation of the crime placed before the court and also take into consideration all relevant facts and circumstances which would help the Judge form a prima facie opinion as to whether the allegation of sexual abuse of the ward is baseless or not. Each case requires to be approached and evaluated on its own facts and we realise that no hard and fast approach could be laid in this respect at all. We do not mean to say that Family Courts should disregard the materials collected by the investigating agency in the crime and hold a total independent enquiry in order to get at the truth or veracity of the allegation. We make it clear that unless there are reliable materials capable enough to convince the allegation of sexual abuse to be well founded, mere registration of crime shall not be reckoned as a ground for rejecting the claim of the parent for custody of the child."