Kerala High Court
Kala Prathapan vs Op (Fc).No.190 Of 202 on 8 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA,
1943
OP (FC).No.190 OF 2021
AGAINST THE ORDER/JUDGMENT IN OP 2377/2017 OF FAMILY
COURT,ERNAKULAM
PETITIONERS:
1 KALA PRATHAPAN, AGED 56 YEARS, W/O. PRATHAPAN
VALAVOOR, VALAVOOR HOUSE, ANNAMANADA P.O.,
THRISSUR, PIN-680 741 NOW RESIDING AT V.B.5,
V.B. FLORA, THANAPADAM, KAKKANAD, COCHIN-682
030.
2 PRATHAPAN VALAVOOR, AGED 65 YEARS, S/O. LATE
K.RAMAN NAIR, VALAVOOR HOUSE, ANNAMANADA P.O.,
THRISSUR, PIN-680 741 NOW RESIDING AT V.B.5,
V.B. FLORA, THANAPADAM, KAKKANAD, COCHIN-682
030.
BY ADVS.
SRI.P.SANJAY
SMT.A.PARVATHI MENON
SRI.BIJU MEENATTOOR
SRI.PAUL VARGHESE (PALLATH)
SRI.P.A.MOHAMMED ASLAM
SRI.KIRAN NARAYANAN
SHRI.PRASOON SUNNY
SRI.RAHUL RAJ
RESPONDENTS:
OP (FC).No.190 OF 2021
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1 NIRMAL REMA DAS, AGED 31 YEARS
S/O. HARIDAS, CELOSIA HOUSE, VANDMATTOM P.O.,
THODUPUZHA VILLAGE AND TALUK, IDUKKI
DISTRICT, PIN-685 582 NOW RESIDING AT 7A,
TRANS AVENUE APARTMENTS, KAKKANAD, KOCHI-682
030.
2 AISWARYA PRATHAPAN, D/O. PRATHAPAN, VALAVOOR
HOUSE, ANNAMANADA P.O., KELLUR THEKKUMURI
VILLAGE, FLAT NO.5, BVB FLORA, THANNAPADAM,
KAKKANAD, COCHIN-682 030. PRESENTLY RESIDING
AT 9, BAUSCHSTR, 97421 SCHWEINFURT,
DEUTSCHLAND, GERMANY.
R1 BY ADV. SRI.T.B.SHAJIMON
R1 BY ADV. SMT.GOVINDU P.RENUKADEVI
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP (FC).No.190 OF 2021
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JUDGMENT
Dated this the 8th day of April 2021
A.Muhamed Mustaque, J
The interim custody of the child is the subject
matter in this original petition. The mother of the
child is now in Germany. The father of the child is
working at Ernakulam and resides at Thodupuzha. The
child is now with the maternal grandparents. The
child is 6 years old.
2. The mother of the child wants to take the
child along with her. The mother has completed her
Master Program in Electrical and Information
Technology at Karlsruhe Institute of Technology,
Germany. However, in order to process the VISA of
the child, she requires an order from this Court
that she be given the sole custody.
3. The learned counsel for the father
expressed certain apprehensions. It is submitted
that the intention of the mother is not to take the
child to Germany but to retain the child with her
OP (FC).No.190 OF 2021
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parents and thereby deny custody to the father. We
are of the view, that the father's apprehensions can
be well safeguarded by orders of this Court.
4. The child requires the care and attention
of his mother. If the mother is capable of taking
the child to Germany, it would be appropriate that
the child be with his mother. However, we cannot
deny the rights of the father also, if the mother
permanently resides in Germany. After interacting
with the learned counsel for the mother, we insist
the mother to bring the child to India at least once
in a year, to allow the child to be in the company
of the father. The learned counsel for the mother
agreed to give custody of the child for 15 days in a
year. We record the above submission.
5. We therefore, issue following directions:
i) The child will be in the sole custody of
the mother and she is permitted to take the child to
Germany along with her.
OP (FC).No.190 OF 2021
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ii) The mother shall take the child to Germany
along with her within a period of two months from
today.
iii) During the period of his stay in India, the
father will be given the custody of the child from
Saturday morning to the ensuing Sunday evening of
every week.
iv) While the child is in the custody of the
mother or his maternal grandparents, the father
shall be allowed to interact with the child on every
day between 7.30 pm to 8 pm.
v) In the light of the order passed by us,
appointing the mother-Aiswarya Prathapan as the sole
guardian, she is free to apply for the visa in
accordance with the procedure applicable for
processing the visa.
vi) It is made clear that if the mother failed
OP (FC).No.190 OF 2021
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to take the child abroad, the interim custody of the
child shall be in the same manner as ordered in
paragraph No.iii
vii) The venue of handing over of the child
is in the same manner as ordered by this Court in
the order dated 30.03.2021.
viii) If there is any change in the address
of the child in Germany, that shall be communicated
to the father without any delay.
In the light of the above, the original petition
is disposed of.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
PR
OP (FC).No.190 OF 2021
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APPENDIX
PETITIONERS EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JOINT PETITION IN OP
NO.1215/2017 FILED BEFORE THE HON'BLE
FAMILY COURT ERNAKULAM DATED 6.6.2017.
EXHIBIT P2 TRUE COPY OF THE PROOF AFFIDAVIT FILED
BY THE FIRST RESPONDENT IN
O.P.1215/2017 DATED 6.12.2017.
EXHIBIT P3 TRUE COPY OF THE PROOF AFFIDAVIT FILED
BY THE 2ND RESPONDENT DATED 6.12.2017.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN
O.P.NO.1215/2017 DATED 19.12.2017.
EXHIBIT P5 TRUE COPY OF THE ORDER IN
I.A.3943/2017 IN OP 2377/2017 DATED
6.12.2017.
EXHIBIT P6 TRUE COPY OF THE COMPLAINT BEFORE THE
INSPECTOR GENERAL AN DCOMMISSIONER OF
POLICE MR. VIJAY SAKHARE IPS, KOCHI
DATED 19.8.2020.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WP(CRL)
96/202 DATED 12.1.2021.
EXHIBIT P8 TRUE COPY OF THE ADDITIONAL AFFIDAVIT
FILED BY THE FIRST RESPONDENT IN
I.A.3943/2017 IN OP NO.2377/2017 DATED
9.2.2021.
EXHIBIT P9 TRUE COPY OF THE ORDER IN
I.A.3943/2017 IN OP NO.2377/2017 OF
THE HON'BLE FAMILY COURT, ERNAKULAM
DATED 20.2.2021 ALONG WITH PROCEEDINGS
DATED 24.2.2021.
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RESPONDENTS EXHIBITS
EXHIBIT R2 (1) TRUE COPY OF BROCHURE OF CHILD STUDY
CENTRE ALONG WITH DAY CARE FACILITY
EXHIBIT R2(2) TRUE COPY OF STUDENT ENROLMENT
CERTIFICATE DATED 30.03.2021
EXHIBIT R2(3) TRUE COPY OF EMPLOYMENT LETTER
EXHIBIT R2(4) TRUE COPY OF THE CHECK LIST NECESSARY
FOR FAMILY REUNION
