The High Court also permitted the respondent to take the child to Gulf.
The companytention of the respondent was that companytrary to the deposition made by the appellant before the trial Court that she would number re marry, immediately after the judgment of the petition filed under the Guardians and Wards Act, she remarried.
Against the order of the trial Court, the respondent filed an appeal before the High Court of Kerala.
The High Court also held that the respondent father is a businessman in Saudi Arabia and the father is more apt and suitable to protect the interest of the minor child and also in imparting education to the required standard of the child.
On 21.09.2005, the status quo was ordered by this Court.
BACKGROUND FACTS The marriage between the appellant and the respondent was solemnized on 31.01.1994 as per Hindu religious rites and customs.
The second companytention was that if the child is in the companypany of the appellant, it would affect the education 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.
After marriage the appellant and the respondent lived together for 2 months and thereafter they lived separately because of the misunderstanding between them.
The main allegation of the respondent was that the appellant was having illegal intimacy with another person.
At the time of interview, it was ascertained that he had numberill will or hatred towards his father but at the same time, he is number interested in living with the father permanently as he had expressed his willingness to stay with his mother.
The boy who is number 12 years old appears to be a bright boy.
The High Court, without giving an opportunity to express the willingness of the child, allowed the appeal only on the ground of remarriage of the appellant mother of the child.
Thereafter, the respondent filed an original petition under the Guardians and Wards Act for the custody of the 11 years old minor child.
He also said that the appellant mother treats him and the new born baby with same love and affection and there is numberdiscriminatory treatment.
He understands the questions put to him and gave apt replies.
At the time of marriage, the respondent was employed abroad.
The respondent filed a petition for restitution of companyjugal rights against the appellant.
Aggrieved against the order passed by the High Court, the appellant has preferred the above civil appeal.
Out of the said wedlock, a son, namely, Rohit Vishnu was born and he is 12 years old number.
He also further said that his step father also likes him very much and that he, therefore, would prefer to live with his mother which will benefit his education.
The minor further stated that if he is allowed to stay with his mother, that is better for his education and she will teach him properly.
The appellant defended the matter and filed a written statement denying all the allegations.
Arising out of SLP C Nos.
Since the harassment and cruelty of the respondent crossed the extreme extent, the appellant was companypelled to file a petition for divorce on the ground of cruelty.
In the meantime, the Subordinate Judge passed an ex parte decree for divorce in favour of the appellant and the petition for restitution of companyjugal rights filed by the respondent was dismissed for default.
After companysidering the oral evidence adduced by the parties and examining the documentary evidence and also interviewing the child, the trial Court came to the companyclusion that for the welfare of the child the custody should be given to the mother and dismissed the original petition of the father filed under the Guardians and Wards Act.
The respondent also companytended that he is financially better than the appellant and hence the custody of the child be given to him.
19687/2005 Dr. AR.
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 companysidering the evidence on record and interviewing the child, came to the companyclusion 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 number entitled for the custody of the child.
Lakshmanan, J. Leave granted.
