Kerala High Court
Sujith Kumar vs Bijila on 1 February, 2021
Mat.Appeal.610/2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
Mat.Appeal.No.610 OF 2020
AGAINST THE ORDER/JUDGMENT IN OPGW 241/2015 DATED 28-07-2020 OF
FAMILY COURT,KOLLAM
APPELLANT/S:
SUJITH KUMAR,
S/O.GOPALAKRISHANA PILLAI, KINARUVILAYIL VEEDU,
PALAKKAL, THEVALAKKARA P.O., THEVALAKKARA VILLAGE,
KARUNAGAPPALLY, KOLLAM-690 524.
MINOR WARD-
K.S GOPAL, AGED 10 YEARS, S/O. SUJITH KUMAR,
KINARUVILAYIL VEEDU, PALAKKAL, THEVALAKKARA P.O.,
THEVALAKKARA VILLAGE, KARUNAGAPPALLY,
KOLLAM-690 524, REPRESENTED BY HIS FATHER AND
NATURAL GUARDIAN MR.SUJITH KUMAR, RESIDING IN THE
ADDRESS SHOWN ABOVE.
BY ADVS.
SRI.K.M.ANEESH
SRI.ADARSH KUMAR
SRI.K.SANTHOSH KUMAR (KALIYANAM)
SRI.BIJU VARGHESE ABRAHAM
SRI.DILEEP CHANDRAN
SRI.SHASHANK DEVAN
RESPONDENT/S:
BIJILA,
D/O.THULASEEDHARAN PILLAI, BIJU NIVAS,
PUKKULAM, PARAVUR, KOLLAM-691 301.
R1 BY ADV. SRI.K.V.SABU
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mat.Appeal.610/2020 2
JUDGMENT
Dated this the 1st day of February, 2021
A.Muhamed Mustaque, J.
This appeal was filed challenging the order in O.P.
(G&W).No.241 of 2015 on the file of Family Court, Kollam.
Minor ward, K.S.Gopal was born in the wedlock of the
appellant with the respondent on 27.05.2010. Marital
dispute between the appellant and the respondent was
settled in O.P.(HMA).No.732 of 2014. Accordingly, marriage
was dissolved. With regard to custody of the minor child, in
O.P.(G&W).No.1255 of 2011, custody was given to the
appellant herein. In that proceedings the respondent
submitted her inability to maintain the child. It was based
on that, the custody was given to the appellant. However,
the respondent was given visitation right during the 3rd
Saturday of every month between 11.00 a.m to 04.00 p.m.
2. O.P.(G&W).No.241/2015 for custody was filed by
the respondent seeking modification of the earlier order.
The Family Court, after a detailed hearing, modified the
earlier order passed. Permanent custody was given to the
appellant subject to visitation rights and contact rights of
the respondent as referred in the order. As per that order
the respondent will have visitation rights from 10.00 a.m to
04.00 p.m on first, second and fourth Saturdays of each
month. It is further ordered that during school holidays of
Onam and Christmas vacations, the respondent will have
visitation right of the child for two consecutive days from
10.00 a.m to 04.00 p.m and likewise. It is also ordered that
during the summer vacation, respondent will have similar
visitation right for initial five consecutive days. Family Court
also permitted the respondent to talk to the minor through
phone (land line/mobile) every day for five to ten minutes
between 7.00 p.m and 9.00 p.m. The parties were directed
to hand over the child at the premises of Family Court,
Kollam. Impugning these directions, the appellant filed this
appeal. According to the learned counsel for the appellant
the respondent is bound by the earlier order of the Family
Court. It is further submitted that respondent expressed her
inability to maintain the child, in earlier original petition for
the reason that she wants to marry again. It is further
submitted that respondent will not be in a position to look
after the child and there is every likelihood of ill-treatment
of the child as alleged.
3. Learned counsel for the respondent would submit
that respondent approached the Family Court in change of
circumstances. It is submitted that respondent is now
employed and she is in a better position to look after the
child.
4. The Family Court placing reliance on the
judgments in Dr.Ashish Ranjan v. Anupama Tanden &
Anthr. [(2010) 14 SCC 274] and Rosy Jacob v. Jacob
[AIR 1973 SC 2090] gave the directions as aforenoted.
5. We perused the order. We find that the Family
Court is justified in issuing the directions in the impugned
order. The mother is only given visitation right from 10.00
a.m. to 4.00 p.m on 1st, 2nd and 4th Saturdays of each month,
apart from the contact rights through telephone. The
visitation right given during Christmas, Onam and summer
vacations is for a shorter duration. The child cannot be
deprived of having the love and affection from his mother.
Merely because the mother earlier expressed her
unwillingness to take the child along with her cannot be a
reason to deny the custody in future. In fact, the mother
had only sought for a modification of earlier right for having
contact with the child for a shorter duration. Mere
misrepresentation of the appellant that the child will be ill-
treated, is not a reason for denying custody to the mother.
In the event of any ill-treatment or if it is found that the
respondent is acting against the interest of the child, it is
always open for the appellant to move the Family Court to
modify the order now passed.
6. The concern of the court is that always the welfare
of the child. Respondent is also free to move the Family
Court in future, if the circumstances so warrant. As of now,
this Court is only need to consider whether the order passed
by the Family Court protects the interest of the child or not.
Having perused the order as above, we find no reason to
interfere with the order. However, learned counsel for the
appellant submits that appellant is having some
inconvenience in handing over the child at the premises of
Family Court, Kollam. It is submitted that the child can be
handed over at the premises of Family Court, Chavara.
Respondent has not expressed any objection in obtaining the
child from the Family Court premises, Chavara. In the said
circumstances, we fix the venue of handing over the child at
Family Court, Chavara as ordered in the impugned order.
With the above modification, this appeal is disposed of. No
order as to costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
JUDGE
DG
