Kerala High Court
Jobinson Mathew vs Riya Thomas on 13 September, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
2024:KER:70017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
OP (FC) NO. 571 OF 2024
AGAINST THE ORDER DATED 02.09.2024 IN I.A.12/2024 IN OPGW NO.1660
OF 2023 OF FAMILY COURT, KOTTAYAM
PETITIONER:
JOBINSON MATHEW, AGED 39 YEARS, S/O. MATHEW, RESIDING
AT KUNNUMALIL HOUSE, MAVADI POST, KALKOONTHAL VILLAGE,
UDUMBUCHOLA TALUK, IDUKKI DISTRICT, PIN - 685554
BY ADVS.
A.MUHAMMED MUSTHAFA
ASWIN KUMAR M J
JOSE MATHEW
RESPONDENTS:
1 RIYA THOMAS, AGED 34 YEARS, DAUGHTER OF
THOMAS MATHEW AANJILIVELIL HOUSE, NALUKODI
P.O., PAYIPPAD, THENGANA VILLAGE,
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT,
KERALA,, PIN - 686548
2 MONIYAMMA THOMAS, AGED 64 YEARS, WIFE OF
THOMAS AANJILIVELIL HOUSE, NALUKODI P.O.,
PAYIPPAD, THENGANA VILLAGE, CHANGANACHERRY
TALUK, KOTTAYAM DISTRICT, KERALA,, PIN - 686548
3 THOMAS MATHEW, AGED 67 YEARS, SON OF MATHEW
AANJILIVELIL HOUSE, NALUKODI P.O., PAYIPPAD
THENGANA VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, KERALA,, PIN - 686546
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
13.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:70017
OP(FC) 571/24
2
JUDGMENT
Devan Ramachandran, J.
The petitioner assails Ext.P11 order of the learned Family Court, Kottayam, on the ground that it has granted him interim custody of his child only for a short duration between 14.09.2024 and 16.09.2024. He points out that he had filed I.A.No.19/2024, namely Ext.P10, wherein, he had asked for custody of the child from 12.09.2024 till 22.09.2024 - being Onam holidays for the child; but that it has been wrongly recorded in Ext.P11 that he acceded to the afore said arrangement. He thus prays that Ext.P11, to the extent impugned be set aside.
2. We notice from the files that this Court had attempted to serve notice on the respondents through a Special Messenger. The Messenger has returned reporting that the respondents refused to accept the summons; and that, in fact, the gate of their house was kept locked, thus incapacitating him from entering the premises.
2024:KER:70017 OP(FC) 571/24 3
3. We have examined Ext.P11 and it records that the directions therein are with the consent of both sides.
4. It is also without doubt that none of the pleadings on record indicate that the petitioner did not accede to the arrangement; but it is argued before us by Sri.A.Muhammed Musthafa - learned counsel for the petitioner, that, what was conceded to by his client was only in I.A.No.12/2024 - filed by the respondents, to modify an earlier arrangement regarding the interim custody, but not qua Ext.P10, which is the application filed by his client seeking custody of the child during Onam holidays.
5. As we have already said above, normally, this Court would have been loath in interfering with Ext.P11, because it says that the arrangement therein has been conceded to by the parties. If the respondents were present before us today, perhaps, we could have got a better view of the matter; but when they have refused to do so, as already recorded above, we are constrained to 2024:KER:70017 OP(FC) 571/24 4 issue orders, as we deem it appropriate.
6. When one looks through Ext.P11, the learned Family Court has restricted the interim custody of the child to the petitioner-father from 14.09.2024 to 16.09.2024, saying that the child has to participate in the Onam Program till 2 P.M. on 14.09.2024 and that her vaccination is due on 18.09.2024.
7. Even assuming that the afore can be accepted, one fails to understand why the child could not be ordered to be with the father till at least the morning of 18.09.2024. We are, therefore, of the firm view that, in spite of the record of consent in Ext.P11, we will be justified in modifying it, since it will cause no prejudice to either of the parties.
In the afore circumstances, we allow this Original Petition to the limited extent of modifying Ext.P11; thus allowing the child to be in the interim custody of the petitioner from 2 P.M. on 14.09.2024 till 10 A.M. on 18.09.2024. In all other respect, the said order will remain unaltered.
2024:KER:70017 OP(FC) 571/24 5 We, however, clarify that this order will have no bearing on the consideration of Ext.P10 application, if it is still pending; and that the learned Family Court will be at liberty to deal with it in accordance with law, if it becomes so warranted in future.
Sd/-
DEVAN RAMACHANDRAN JUDGE Sd/-
M.B. SNEHALATHA JUDGE RR 2024:KER:70017 OP(FC) 571/24 6 APPENDIX OF OP (FC) 571/2024 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE OP(G&W) NO. 1660 OF 2023, DATED 15.11.2023 ON THE FILES OF FAMILY COURT, ETTUMANOOR Exhibit P2 A TRUE COPY OF THE IA 1/23 IN OP(G&W) NO.
1660 OF 2023 DATED 17.11.2023 BEFORE THE FAMILY COURT, ETTUMANOOR Exhibit P3 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN IA 1/23 IN OP(G&W) NO. 1660 OF 2023 DATED 24.01.2024 BEFORE THE FAMILY COURT, ETTUMANOOR Exhibit P4 A TRUE COPY OF THE ORDER DATED 31.01.2024 IN IA 1/23 IN OP(G&W) NO. 1660 OF 2023 ON THE FILES OF FAMILY COURT, ETTUMANOOR Exhibit P5 A TRUE COPY OF THE JUDGMENT DATED 01.04.2024 IN OP(FC) NO. 220 OF 2024 Exhibit P6 A TRUE COPY OF THE IA 4/24 IN OP(G&W) NO.
1660 OF 2023 DATED 26.03.2024 BEFORE THE FAMILY COURT, ETTUMANOOR Exhibit P6(a) A TRUE COPY OF THE IA 10/24 IN OP(G&W) NO. 1660 OF 2023 DATED 26.03.2024 BEFORE THE FAMILY COURT, ETTUMANOOR Exhibit P7 A TRUE COPY OF THE ORDER DATED 17.05.2024 IN IA 16/24 IN OP(G&W) NO. 1660/2023 Exhibit P8 A TRUE COPY OF THE IA 12/24 IN OP(G&W) NO. 1660/2023, DATED 30.03.2024 Exhibit P9 A TRUE COPY OF THE OBJECTION TO IA 12/24 IN OP(G&W) NO. 1660/2023, DATED 20.04.2024 Exhibit P10 A TRUE COPY OF THE IA 19/24 IN OP(G&W) 2024:KER:70017 OP(FC) 571/24 7 NO. 1660/2023, DATED 30.08.2024 Exhibit P11 A TRUE COPY OF THE ORDER, DATED 02.09.2024 IN IA 12/24 IN OP(G&W) NO. 1660/2023