Kerala High Court
Aji Thomas vs Jeena M. P on 11 April, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
OP (FC) NO. 65 OF 2024
AGAINST THE ORDER DATED 22.01.2024 IN IA 19/2023 IN GOP NO.307
OF 2022 OF FAMILY COURT, KALPETTA
PETITIONERS/PETITIONER IN G.O.P:
AJI THOMAS
AGED 34 YEARS
S/O V.P. THOMAS, ENGINEER, VANCHIPPARA HOUSE,
LAKOOR, PRAMADOM VILLAGE, KONNI TALUK,
MALLASSERY P.O., PATHANAMTHITTA - 689646,
REPRESENTED BY HIS POWER OF ATTORNEY,
V. P. THOMAS, S/O THE LATE V.C. PHILIP,
AGED 74 YEARS, VANCHIPPARA HOUSE, LAKOOR,
PRAMADOM VILLAGE,
KONNI TALUK, MALLASSERY P.O.,
PATHANAMTHITTA DISTRICT -, PIN - 689646
BY ADVS.
KARTHIKA SUKUMARAN SK
ANJANA M VADHYAR(K/000456/2018)
RISHINATH R.(K/2997/2022)
RESPONDENTS/RESPONDENTS IN G.O.P:
1 JEENA M. P.
AGED 34 YEARS
D/O PAULOSE, MUTTATHU HOUSE, PULPALLY P.O.,
PULPALLI VILLAGE, SULTHAN BATHERY TALUK,
WAYANAD DISTRICT - 673579,
REPRESENTED BY POWER OF ATTORNEY HOLDER,
VINEETH PAULOSE, AGED 30 YEARS, S/O PAULOSE,
MUTTATHU HOUSE, PULPALLY P.O.,
PULPALLY VILLAGE, SULTHAN BATHERY TALUK,
WAYANAD DISTRICT, PIN - 673579
OP (F.C.) No.65 of 2024
2
2 *ADDL.R2
LILLYKUTTY THOMAS,
AGED 68 YEARS, W/O MR. P.T THOMAS,
VANCHIPPARA HOUSE, MALLASERRY P.O,
PATHANAMTHITTA DISTRICT - 689 646.
*ADDL. R2 IS IMPLEADED AS PER ORDER
DATED 23.02.2024 IN IA 3/2024 IN OP(FC) 65/2024.
BY ADVS.
A.PARVATHI MENON
BOBBY K.PAUL(K/2836/1999)
P.SANJAY
BIJU MEENATTOOR
PAUL VARGHESE (PALLATH)
P.A.MOHAMMED ASLAM
KIRAN NARAYANAN
RAHUL RAJ P.
AMRUTHA M. NAIR
MUHAMMED BILAL.V.A
MEERA R. MENON
BASILA BEEGAM
R1 BY ADV. SRI P. A. ABHILASH
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (F.C.) No.65 of 2024
3
JUDGMENT
Raja Vijayaraghavan, J.
The petitioner, who is the husband of the respondent, entered into marriage with the respondent on April 12, 2015. The couple has one son born of this union. Due to irreconcilable differences, the relationship between the petitioner and respondent has deteriorated. Seeking a declaration affirming him as the legal guardian of their minor son and for custody of the child, he has approached the Family Court, Kalpetta and has instituted a petition under Sections 7 and 25 of the Guardians and Wards Act, 1890.
2. While the matter was pending before the Family Court, the respondent went to the UAE for employment. The minor boy child was left in the company of her parents. Seeking interim custody, the petitioner, who is also working abroad, filed an application before the Family Court. The learned Family Court, after hearing the contentions advanced by both sides and after appreciating the facts and circumstances, passed the following order granting custody of the child to the father on the following conditions:-
"(1) The petitioner shall take steps to appoint an expert care taker to look after the needs of the child having hyper activity.
(2) The mother of the child shall be given opportunity at any time to contact with the child through video call or mobile phone without affecting the education of the child.OP (F.C.) No.65 of 2024 4
(3) The maternal grandparents or brother of the respondent can also have interaction with the child in person or through video call or phone etc., to increase the well being of the minor child and in the case of personal interaction with the child then the same shall be informed to the parents of the petitioner in advance and the parents of the petitioner shall not interfere or obstruct such interaction.
(4) When the mother of the child come to India during vacation or leave, the child shall be produced before this court for the purpose of interaction in favour of the mother and also for interim custody.
(5) The petitioner or his parents shall continue the treatment of the child in the best hospital and that the respondent is directed to furnish the details of previous treatment of the child at once for further treatment.
Similarly, the parents/petitioner shall furnish the details of treatment of child in favour of respondent through any mode of communication and shall take the advice of mother for the best interest of unfortunate child.
(6) Whenever any special occasion or event arise in the maternal grandparents house then respondent can take the child to participate in the special occasion or event as the case may be and the parents of the respondent shall facilitate the same and if possible they shall accompany the child to have better interaction with both family members for the sake of child who required the love and affection of paternal and maternal grandparents."
3. Though an application seeking transfer of the matter from the Family Court, Kalpetta was filed by the petitioner, his request was rejected by this Court.
4. Later, an application was filed by the respondent before the OP (F.C.) No.65 of 2024 5 Family Court contending that the mother is coming back from UAE and that she wanted custody of the child while she was in India. Various objections were raised before the Family Court by the petitioner. Rejecting his objections, the application was allowed and Ext.P16 order was passed. The operative portion of the order reads as under:
"a) The interim custody of the child is given to the petitioner/ mother of the child till the petitioner is in Kerala.
b) The petitioner/mother of the child shall ensure the successful completion of the academic year of the child and shall enable the child to write the exams in the school in which the child is studying at present and shall file a report with a certificate from the school concerned before this Court on 04.04.2024.
c) The petitioner/mother shall report before this court if she is going abroad for work and at that time the order as to the interim custody of the child shall be reconsidered.
d) The father of the child is at liberty to see the child and interact with him with the permission of the court whenever he comes to Kerala.
e) The respondent is directed to produce the child before the court on 25.01.2024 at 10.30 am to give the custody of the child to the petitioner/mother, failing which the petitioner/mother is at liberty to take the custody of the child from the respondent/father or from the paternal grandparents of the child with the aid of Station House Officer, Konni Police Station."
5. The above order is under challenge in this petition. Various OP (F.C.) No.65 of 2024 6 contentions are raised in this petition to assail the order as illegal and arbitrary.
6. When this matter came up for consideration before this Court, by order dated 31.01.2024, this Court directed the petitioner-father to produce the child before the Family Court, Pathanamthitta on 01.02.2024. On production, the custody of the child was handed over to the mother in terms of the interim order passed by this Court. This was based on the undertaking given by the mother that she would be available in the State of Kerala for a period of one month. She also stated that in case of extreme urgency, she may have to travel to her place of employment. This Court, believing the undertaking given by the mother, ordered that the custody of the child shall be retained with the mother and the father was permitted to make video calls with the child.
7. While so, I.A. No.5 of 2016 was filed by the mother seeking issuance of directions to the Principal, Marymatha Public School, Pathanamthitta to conduct the U.K.G. examination of the child, as scheduled to be held on 28.02.2024 and 29.02.2024. A request was also made to permit the mother to take her child abroad for admission to the I Standard at her workplace in UAE.
8. This Court refused the request and opined that such requests will OP (F.C.) No.65 of 2024 7 have to be raised before the Family Court.
9. The respondent in the meantime approached the Family Court, Kalpetta, and filed an application seeking permission to take the child abroad. However, no orders have been passed in the said application.
10. In the meantime, what has transpired is that the mother proceeded to file a memo dated 28.03.2024 before the Family Court stating that she is taking the minor child to Abu Dhabi on 29.03.2024 for the purpose of securing admission at the Sunrise International Public School, Abu Dhabi. Without securing orders from this Court or the Family Court, the child was taken away from the territorial jurisdiction of the Family Court.
11. The petitioner states that in view of the above development, he has preferred I.A. No.30 of 2024 before the Family Court, seeking a direction to the respondent-mother to produce the minor child before the Family Court and to issue directions to surrender the passport of the child and for consequential reliefs. The petitioner also states that after taking the child from the jurisdiction of this Court, the petitioner has not been permitted to make videocalls since Whatsapp/Video Calls are banned in the place of employment of the respondent and the petitioner. He states that he is kept under dark about the whereabouts of his son.
OP (F.C.) No.65 of 20248
12. When this matter has come up for consideration on 08.04.2024, this Court had passed the following order:-
"Smt. Karthika, the learned counsel appearing for the petitioner, submitted that by order dated 31.1.2024, the custody of the child was handed over to the respondent on 01.02.2024. Though an application was filed for permitting her to take the child overseas and to secure admission to a school in the UAE, the said request was not acceded by this Court. It is submitted that stealthily and without seeking permission from this Court as well as the Family Court, Kalpetta, the respondent has whisked the child away and has taken admission in a school in Abu Dhabi. She contends that the respondent has wilfully flouted the orders of this Court and by her contumacious act, the petitioner is prevented from having close contact with his son.
2. In response, Sri. P.A. Abhilash, the learned counsel submitted that the petitioner is working in Dubai as an Engineer and he can very well meet the child or have interaction with him with the minimum of effort. It is submitted that it would not be in the best interest of the child to come back to India and stay with the paternal grandparents.
3. Having considered the submissions advanced, prima facie, we are disturbed by the manner in which the child was taken abroad without seeking permission from this Court or the Family Court. However, we would like to hear the explanation of the petitioner and would also like to interact with the minor child.
4. The petitioner as well as the respondent shall appear online at 10:15 a.m. on 11.04.2024 to enable us to have an interaction with the parties. The minor child shall also be made available for interaction.
5. The Registry shall send a Google Meet/Zoom link for the video conferencing to the counsel appearing for both sides and also to Adv. A. Parvathi Menon, the counsel appearing for the 2nd respondent.'
13. In terms of the directions issued by this Court, we had occasion OP (F.C.) No.65 of 2024 9 to interact with the petitioner and the respondent through video call. We had occasion to see the minor child and his interactions with his mother.
14. Before us, the petitioner submitted that he has been totally cut off from his son. The respondent has committed a blatant violation of the undertaking given by her before this Court and also the Family Court. According to the petitioner, he is employed in Oman whereas the respondent is employed in Abu Dhabi. He pointed out that while the respondent goes out for employment, the child will be alone at home and it may not be good for the mental well-being of the child. He also referred to the various treatment records and also the directions issued by the Family Court that the child should be granted the best possible medical care and treatment for his proper health and mental well being.
15. In response, the respondent stated that she had filed two applications before the Family Court seeking to advance the matter and those applications were rejected. It is stated that the child is suffering from various ailments and his proximity with the mother has helped the child in no small measure. She stated that she had no option but to take the child as it required her constant care and monitoring. She also stated that she has secured an admission for her son in a School at Abu Dhabi. She has also appointed a helper to be with the child all through. She stated that she has OP (F.C.) No.65 of 2024 10 not wilfully flouted the directions issued by this Court or the Family Court.
16. We have heard Smt.S.Karthika, the counsel appearing for the petitioner, Sri.P.A Abhilash, the counsel appearing for the respondent - mother as well as Smt.A. Parvathi Menon, the counsel appearing for the paternal grandparents.
17. When the matter had come up for consideration on 08.04.2024, on being made aware that the respondent had taken the child out of jurisdiction of this Court without seeking permission either from this Court or from the Family Court, we had strongly deprecated the actions of the mother. However, we find that the mother and the father are working abroad and only the aged parents of the petitioner are here in India. We also noticed that the child is very comfortable with the mother. He was also trying to defend his mother and to explain the reasons why he was taken to the place of employment of his mother. We have also gone through the medical records of the child and we feel that it would not be wise for us to take retributive measures and ensure that the child is brought back to the Country.
18. Smt S.Karthika, the learned counsel, fairly submitted that the matter can now be remitted back to the Family Court with specific directions to expeditiously consider I.A.No.30/2024 pending before the Family Court. We also find that the application filed by the mother before the Family Court OP (F.C.) No.65 of 2024 11 seeking permission to take the child overseas is also pending consideration. Though we do not appreciate the manner in which the respondent has taken the child out of the Country, in the facts and circumstances, we feel that it would be appropriate that the Family Court, Kalpetta consider the applications filed by the parties and take a decision.
19. While considering the application, the learned Family Court shall bear in mind the observation of the Apex Court in Mausami Moitra Ganguli1, wherein it was held that the first and the paramount consideration is the welfare of the child and not the right of the parent. It was held as follows:
"19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably, the provisions of law pertaining to the custody of child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.
20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases 1 Mausami Moitra Ganguli v. Jayant Ganguli [(2008) 7 SCC 673] OP (F.C.) No.65 of 2024 12 can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration."
20. We are of the view that without us taking one view or the other, the Family Court, Kalpetta can be directed to consider the applications filed by the parties and take expeditious decision keeping the welfare of the child as the ultimate objective as held by the Apex Court as well as this Court in numerous precedents.
21. At this stage, the counsel appearing for the respondent submitted that though Whatsapp calls are banned, it would be possible for the child to interact with the father either through zoom, google meet web applications or through Botim.
22. In that view of the matter, we are of the view that this petition can be disposed of directing the parties through their respective Advocates to appear before the Family Court and seek expeditious consideration of I.A.No OP (F.C.) No.65 of 2024 13 30/2024 and also the application filed by the mother, if pending. The Family Court shall endeavour to consider the pending applications and take a decision within an outer limit of two months from the date of production of a copy of this judgment.
In the meantime, the respondent shall permit the petitioner to interact with his son on all days between 7.00 p.m. and 8.00 p.m., either through Google Meet/Botim/Zoom or through any other available virtual mode. The paternal grandparents shall also be permitted to have interaction on every Friday between 6.00 p.m. and 7.00 pm. The paternal grandparents may also join when the father is having interaction with the child. The respondent shall forthwith forward the e-mail ID as well as the mobile number to the petitioner to enable him to initiate the online interaction using the modes mentioned above.
RAJA VIJAYARAGHAVAN V, JUDGE P.M.MANOJ JUDGE bpr OP (F.C.) No.65 of 2024 14 APPENDIX OF OP (FC) 65/2024 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE PETITION IN G.O.P. NO.
307/2022 FILED BY THE PETITIONER BEFORE THE
FAMILY COURT, KALPETTA
Exhibit P2 THE TRUE COPY OF THE WRITTEN OBJECTION FILED BY
THE RESPONDENT IN G.O.P. NO. 307/2022 BEFORE THE FAMILY COURT, KALPETTA Exhibit P3 THE TRUE COPY OF THE ORDER DATED 22/06/2023 IN I.A. NO. 10/2023 IN G.O.P. NO. 307/2022 PASSED BY THE FAMILY COURT, KALPETTA Exhibit P4 THE TRUE COPY OF THE JUDGMENT DATED 24/11/2023 PASSED IN TR.P.(C) NO. 421/2023 BY THIS HON'BLE COURT Exhibit P5 THE TRUE COPY OF THE I.A. NO. 19/2023 DATED 18/12/2023 IN G.O.P. NO. 307/2022 BEFORE THE FAMILY COURT, KALPETTA Exhibit P6 THE TRUE COPY OF COUNTER AFFIDAVIT/OBJECTION DATED 22/12/2023 FILED BY THE PETITIONER IN I.A. NO. 19/2023 IN G.O.P. NO. 307/2022 BEFORE THE FAMILY COURT, KALPETTA Exhibit P7 THE TRUE COPY OF THE OP REGISTRATION CARD DATED 21/06/2023 ISSUED BY THE DISTRICT HOSPITAL, KOZHENCHERRY Exhibit P8 THE TRUE COPY OF THE ASSESSMENT REPORT DATED 22/12/2023 ISSUED BY THE COUNSELLING PSYCHOLOGIST OF THE MAR GREGORIOUS MEMORIAL MUTHOOT MEDICAL CENTRE, PATHANAMTHITTA Exhibit P9 THE TRUE COPY OF THE ASSESSMENT CARD OF THE MINOR CHILD FOR THE ACADEMIC YEAR 2023-2024 FROM MARY MATHA PUBLIC SCHOOL, AZHOOR, PATHANAMTHITTA OP (F.C.) No.65 of 2024 15 Exhibit P10 THE TRUE COPY OF THE TREATMENT CERTIFICATE DATED 28/12/2023 ISSUED BY DR. JEFNA PAULSON, ALAPPAT DENTAL CLINIC, THOPPUMPADY, KOCHI Exhibit P11 THE TRUE COPY OF I.A. NO.20/2023 IN G.O.P. NO.
307/2022 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KALPETTA Exhibit P12 THE TRUE COPY OF WHATSAPP POST SENT BY THE RESPONDENT TO THE PETITIONER ON 13/01/2024 Exhibit P13 THE TRUE COPY OF THE MEDICAL CERTIFICATE DATED 15/01/2024 ISSUED BY THE MEDICAL PRACTITIONER, DEEPA CLINIC, KALLISSERY, PATHANAMTHITTA Exhibit P14 THE TRUE COPY OF THE I.A. NO.21/2024 IN IN G.O.P. NO. 307/2022 FILED BY THE PETITIONER THROUGH HIS POWER OF ATTORNEY BEFORE THE PRINCIPAL DISTRICT COURT OFFICIATING AS FAMILY COURT, KALPETTA Exhibit P15 THE TRUE COPY OF THE TREATMENT CARD DATED 19/01/2024 ISSUED BY THE GOVERNMENT GENERAL HOSPITAL, PATHANAMTHITTA Exhibit P16 THE TRUE COPY OF THE ORDER DATED 22/01/2024 IN I.A. NO. 19/2023 IN G.O.P. NO. 307/2022 BEFORE THE FAMILY COURT, KALPETTA RESPONDENT EXHIBITS Exhibit R1(a) THE TRUE COPY OF THE JUDGMENT IN OP(FC)NO.177/2023 BEFORE HON'BLE HIGH COURT OF KERALA Exhibit R1(b) THE TRUE COPY OF THE I.A.NO.24/2024 IN OP 307/2022 FAMILY COURT WAYANAD DATED 23.01.2024 Exhibit R1(c) TRUE COPYOF THE LETTER TO SHO, KONNI DATED 26.01.2024 FOR POLICE AID Exhibit R1(d) THE TRUE COPY OF THE MGM MUTHOOT HOSPITAL RECEIPT DATED NIL Exhibit R1(e) THE TRUE COPY OF THE ASSESSMENT CARD (MARY MATHA PUBLIC SCHOOL) SHOWING THE ABSENCES CHILD IN WRITTEN EXAMINATIONS DATED NIL OP (F.C.) No.65 of 2024 16 Exhibit R1(f) THE TRUE COPY OF THE INVITATION CARD DATED 15.01.2024 Exhibit R1(g) THE TRUE COPY OF THE WHATSAPP VIDEO CALL DETAILS, SCREEN SHOTS DATED 9, 10 AND 11 JANUARY 2024 PETITIONER EXHIBITS Exhibit P17 TRUE COPY OF THE INTERLOCUTORY APPLICATION DATED 7/2/2024 FILED BY THE RESPONDENT IN O.P.(G&W) NO. 307/2022 BEFORE THE FAMILY COURT KALPETTA.
Exhibit P18 THE TRUE COPY OF THE CERTIFICATE OF ENTRY OR EXIT (LAST TRAVEL) IN RESPECT OF JEENA MUTTATH HOLDING INDIAN PASSPORT NO. V7738792 (DATE OF ISSUE -
27/02/2021) ISSUED BY THE FEDERAL AUTHORITY FOR IDENTITY & CITIZENSHIP, GENERAL DIRECTORATE OF RESIDENCY AND FOREIGNERS AFFAIRS, DUBAI, UAE. RESPONDENT EXHIBITS Exhibit R2(1) TRUE COPY OF THE REPORT DATED 13.02.2024 FROM THE DEPARTMENT CLINICAL PSYCHOLOGY, AMRITHA INSTITUTE OF RESEARCH AND MEDICAL CENTRE, KOCHI Exhibit R2(2) TRUE COPY OF THE PROTECTION ORDER DATED 26.2.22 OF THE JUDICIAL FIRST CLASS MAGISTRATE II, PATHANAMTHITTA Exhibit R2(3) TRUE COPY OF THE CERTIFICATE FOR ENTRY/EXIT OF UAE VISIT OF MS. JEENA DATED 09.02.2024 RESPONDENT EXHIBITS Exhibit R1(h) TRUE COPY OF THE BROCHURE OF THE INTERNATIONAL INDIAN SCHOOL ABU DHABI PETITIONER EXHIBITS Exhibit- P19 TRUE COPY OF THE MEMO DATED 28.03.2024 FILED BY THE RESPONDENT BEFORE FAMILY COURT, KALPETTA.