Kerala High Court
Nihita Sukumaran vs Anoop M.S on 30 September, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
2024:KER:72974
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
OP (FC) NO. 522 OF 2024
AGAINST THE ORDER DATED 25.07.2024 IN GOP NO.1592 OF 2022 OF
FAMILY COURT,ERNAKULAM
PETITIONER/PETITIONER:
NIHITA SUKUMARAN, AGED 35 YEARS
D/O THE LATE E. SUKUMARAN, RESIDING AT
1 A, E.V SINAI TOWER, GCDA ROAD, NGO
QUARTERS, MAVELIPURAM ROAD, ZONE - 2,
KAKKANAD, KOCHI, PIN - 682030
BY ADVS.
C.S.MANU
S.K.PREMRAJ
V.SARITHA
DILU JOSEPH
C.A.ANUPAMAN
T.B.SIVAPRASAD
C.Y.VIJAY KUMAR
MANJU E.R.
ANANDHU SATHEESH
ALINT JOSEPH
PAUL JOSE
DAINY DAVIS
NEETHU.K.SHAJI
RESPONDENT/RESPONDENT:
ANOOP M.S., AGED 40 YEARS, S/O M.S. SIVAN,
RESIDING AT MULANGAPARAMBIL HOUSE , S.N PURAM,
ASOKAPURAM P.O, ALUVA, NOW RESIDING AT 295,
TURNPIKE ROAD, WESTBOROUGH, MA 01581 , UNIT
#5 - 519, U.S.A, PIN - 683101
2024:KER:72974
OP(FC) 522/24
2
BY ADVS.
V.K.BALACHANDRAN
AMRUTHA P.S.
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
30.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2024:KER:72974
OP(FC) 522/24
3
JUDGMENT
Devan Ramachandran, J.
The parties are divorced and were earlier embroiled in a litigation for the custody of their child, with the wife having filed O.P.No.1592/2022 before the learned Family Court, Ernakulam. This Original Petition was, however, compromised between the parties, leading to Ext.P2 decree, in which, the terms of the same were incorporated. As per this compromise, the permanent custody of the child was agreed to be with the mother, with visitation and interim custody arrangements given in favour of the father and paternal grandparents.
2. However, on the allegation that the petitioner-mother is violating the said decree, the respondent filed O.P.No.2111/2023, asserting changed circumstances and seeking permanent custody of the child; simultaneously with which, the petitioner filed I.A.No.7/2023, seeking that she be allowed to take the child to the United Kingdom, or to any other place where her present 2024:KER:72974 OP(FC) 522/24 4 husband decides to relocate for employment.
3. It transpires, as is admitted by the parties, that the aforementioned I.A.No.7/2023 was heard along with two other applications filed by the respondent; but that even though the said applications were disposed of, this interim application was kept pending, to be heard along with the above mentioned O.P.No.2111/2023.
4. Interestingly, Sri.V.K.Balachandran - learned counsel for the respondent, today informed us that O.P.No.2111/2023 has been withdrawn by his client; and that he has, instead, filed Ext.P12 application before the learned Family Court in O.P.No.1592/2022 (earlier disposed of through Ext.P2 decree), seeking permanent custodianship and guardianship of the child.
5. Smt.Dainy Davis - learned counsel for the petitioner, vehemently argued that, since her client is now remarried, thus enjoining her to accompany her husband, when he proposes to locate the family to U.K., it was unfair for the learned Family 2024:KER:72974 OP(FC) 522/24 5 Court not to have allowed I.A.No.7/2023, whereby, she had sought a modification of the terms of the earlier decree. She added that her client has no objection in the said application being considered along with I.A.No.12/2024 filed by the respondent; but prayed that orders on it be not allowed to be delayed because, she is now awaiting clearance to go abroad with her husband.
6. Sri.V.K.Balachandran - learned counsel for the respondent, acceded to the afore course, agreeing that the impugned order, to the extent to which it orders I.A.No.7/2023 to be heard along with O.P.No.2111/2023, is no longer relevant because the latter has been withdrawn.
In the afore circumstances and with the consent of both sides, we allow this Original Petition, with the following directions:
a) The learned Family Court, Ernakulam, is directed to take up I.A.No.7/2023 in O.P.No.1592/2022 and dispose it of, 2024:KER:72974 OP(FC) 522/24 6 after affording necessary opportunity to both sides, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. We clarify that we have not entered into the merits of any of the rival contentions qua it; and that they are all left open.
b) Either simultaneously, or without any avoidable delay thereafter, the learned Family Court will take up Ext.P12 application, namely I.A.No.12/2024, filed by the petitioner in O.P.No.1592/2022, after affording necessary opportunity to both sides; thus culminating in an appropriate order thereon, without any avoidable delay.
Sd/-
DEVAN RAMACHANDRAN JUDGE Sd/-
M.B. SNEHALATHA JUDGE RR 2024:KER:72974 OP(FC) 522/24 7 APPENDIX OF OP (FC) 522/2024 PETITIONER EXHIBITS Exhibit P-1 TRUE COPY OF GUARDIAN O.P NO. 1592 OF 2022 DATED 10-6-2022 FILED BEFORE THE HON'BLE FAMILY COURT, ERNAKULAM Exhibit P-2 TRUE COPY OF THE DECREE DATED 10-6-2022 IN O.P NO. 1592 OF 2022 PASSED BY THE HON'BLE FAMILY COURT, ERNAKULAM Exhibit P-3 TRUE COPY OF THE DECREE OF DIVORCE DATED 20-6-2022 IN O.P NO. 1389 OF 2022 PASSED BY THE HONOURABLE FAMILY COURT, ERNAKULAM Exhibit P-4 TRUE COPY OF I.A NO. 7 OF 2023 IN O.P NO. 1592 OF 2022 FILED BY THE PETITIONER ON 20-10-2023 BEFORE THE HONOURABLE FAMILY COURT, ERNAKULAM Exhibit P-5 TRUE COPY OF THE COUNTER DATED 20-11- 2023 FILED BY THE RESPONDENT IN I.A NO. 7 OF 2023 IN O.P NO. 1592 OF 2022 BEFORE THE HONOURABLE FAMILY COURT, ERNAKULAM Exhibit P-6 TRUE COPY OF THE I.A NO. 10 OF 2024 IN I.A NO. 7 OF 2023 IN O.P NO. 1592 OF 2022 FILED BY THE PETITIONER ON 15-6- 2024 BEFORE THE HON'BLE FAMILY COURT, ERNAKULAM EXCLUDING THE DOCUMENTS FILED THEREIN Exhibit P-7 TRUE COPY OF THE G.O.P NO. 2111 OF 2023 DATED 21-9-2023 FILED BY THE RESPONDENT BEFORE THE HON'BLE FAMILY COURT, ERNAKULAM Exhibit P-8 TRUE COPY OF THE OBJECTION DATED 1-4- 2024 FILED BY THE PETITIONER IN G.O.P NO. 2111 OF 2023 ON THE FILES OF THE HON'BLE FAMILY COURT, ERNAKULAM 2024:KER:72974 OP(FC) 522/24 8 EXCLUDING THE DOCUMENTS FILED THEREIN Exhibit P-9 TRUE COPY OF THE I.A NO. 3 OF 2024 DATED 2-3-2024 IN G.O.P NO. 2111 OF 2023 FILED BY THE RESPONDENT ON THE FILES OF THE HON'BLE FAMILY COURT, ERNAKULAM Exhibit P-10 TRUE CERTIFIED COPY OF THE ORDER DATED 5-4-2024 IN I.A NO. 3 OF 2024 IN G.O.P NO. 2111 OF 2023 PASSED BY THE HON'BLE FAMILY COURT, ERNAKULAM Exhibit P-11 TRUE CERTIFIED COPY OF THE COMMON ORDER DATED 25-7-2024 IN I.A NO. 44 OF 2023 IN O.P NO. 1592 OF 2022, I.A NO. 6 OF 2023 IN O.P NO. 1592 OF 2022 AND I.A NO. 7 OF 2023 IN O.P NO.1592 OF 2022 PASSED BY THE HON'BLE FAMILY COURT, ERNAKULAM Exhibit P-12 TRUE COPY OF I.A NO. 12 OF 2024 IN O.P NO. 1592 OF 2022 FILED BY THE RESPONDENT HEREIN BEFORE THE HON'BLE FAMILY COURT, ERNAKULAM