Lalitha vs Ragini K.S
2021 Latest Caselaw 3877 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                              &

              THE HONOURABLE MR.JUSTICE C.S.DIAS

     WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH
                        MAGHA,1942

                    OP (FC).No.36 OF 2021

 AGAINST THE ORDER/JUDGMENT IN OPGW 2660/2019 OF FAMILY
                    COURT,TRIVANDRUM


PETITIONERS:

     1        LALITHA, AGED 80 YEARS, W/O. SIVAN NADAR,
              BINDU VIHAR, THERUVILAPUTHENVEEDU, THAMALAM,
              POOJAPURA P.O, TRIVANDRUM - 695 012.

     2        SIVAN NADAR, AGED 90 YEARS, F/O. SIVAPRASAD,
              BINDU VIHAR, THERUVILAPUTHENVEEDU, THAMALAM,
              POOJAPURA P.O, TRIVANDRUM - 695 012.

              BY ADVS.
              SRI.RINU. S. ASWAN
              SRI.G.SREEKUMAR (CHELUR)

RESPONDENT:

              RAGINI K.S, AGED 35 YEARS
              D/O. KOMALAVALLY AMMA, ANITHA BHAVAN,
              THAMALAM, KESHAVADEV ROAD, POOJAPURA P.O,
              THIRUVANANTHAPURAM, NOW RESIDING AT R.A.A
              HOUSE, T.C. NO. 47/2511, KRRA 242 D,
              KESHAVADEV ROAD, MUDAVANMUGHAL, POOJAPURA P.O,
              THIRUVANANTHAPURAM.

              R1 BY ADV. SRI.SABU S.KALLARAMOOLA

     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP (FC).No.36 OF 2021

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                               JUDGMENT

Dated this the 3rd day of February 2021 A.Muhamed Mustaque, J

This original petition was filed by the paternal grand parents

of the child Sruthy R. Prasad, aged 15 years, now studying in Xth

standard. The father of the child namely, Sivaprasad L.S expired

one year ago, during pendency of the original petition before the

Family Court. The child was under the care of paternal grand

parents. Mother, Ragini K.S, moved a petition for permanent

custody in O.P. (G & W) No. 2660 of 2019 before the Family Court,

Thiruvananthapuram.

2. The mother moved an interim application as I.A. No.

4105 of 2019. An order has been passed on 2.11.2020. The

operative portion of the order reads thus:

"In the result this petition is allowed by granting interim custody of the minor child from 8 am till 6 pm to the 1st petitioner and the minor child is allowed to be in the custody of the respondents 2 and 3 from 6 pm till 8 am every day and the 1st petitioner as well as the OP (FC).No.36 OF 2021

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respondents 2 and 3 shall take care of the minor child properly without affecting her studies in any way and without causing any kind of harassment, ill treatment from anybody including the 1st petitioner and the respondents 2 and 3. The 1 st petitioner shall make all arrangements for taking the minor child to and from the home of respondents 2 and 3 everyday. "

3. This original petition was filed mainly raising a ground

that the Family Court failed to note the views of the child before

passing such order. Therefore, in this original petition, the

petitioner seeks the appointment of child councilor or any other

experts to interact with the child to ascertain her views in regard to

custody.

4. Pursuant to the direction of this Court, the child has

been produced before this Court today, by mother. We interacted

with the child and the mother. We also interacted with the paternal

grand parents of the child through video conferencing. After

interacting with the child, who is past 15, we are of the view that the

child had attained the age of intelligent preference and her views are

relevant for consideration of the original petition as well as the OP (FC).No.36 OF 2021

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further arrangement of her custody pending before the Family

Court. The child is happy with the paternal grand parents as well as

with her mother. She also expressed that she needs to take care of

the aged paternal grand parents as an obligation because they have

taken care of her.

5. We note that the paternal grand parents are 80 and 90

years. The child is now studying at Xth standard. She requires

personal attention, constant supervision and monitoring. Taking

note of the age of the grand parents, we are of the considered

opinion, considering the welfare and best interest of the child such

personal care can only be bestowed by her mother. Therefore, we

are of the view that the child should continue in the interim custody

of the mother. However, we cannot over look her attachment with

her paternal grand parents. In view of the fact that she is appearing

for the secondary examinations soon, without affecting her

emotional attachment with the paternal grand parents, we issue the

following directions for the time being. Accordingly, we modify OP (FC).No.36 OF 2021

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Ext.P3 order now passed by the Family Court, Thiruvananthapuram.

i) We order the interim custody of the child with mother.

ii) As the distance between the maternal house and the

paternal grand parents house is only 2 km, the mother who has

undertaken before this Court, shall drop the child everyday with the

paternal grand parents between 5 pm to 7 pm, subject to tuition

timings of the child.

iii) Mother shall make arrangements for tuition and all other

matters in relation to academic affairs of the child.

iv) On every week end - Saturday and Sunday, the mother

shall drop the child at the house of paternal grand parents from the

morning till evening (from 10 am to 5 pm ) and also on public

holidays subject to the timings of the tuition and classes of the child.

v) During summer holidays also, if the child need not

attend any classes or tuition, the child shall be dropped at the house

of the paternal grand parents from 10 am to 5 pm.

vi) The paternal grand parents need not make any OP (FC).No.36 OF 2021

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arrangement for the tuition of the child, which shall be the

responsibility of the mother.

vii) This order will continue till the disposal of the original

petition before the Family Court, Thiruvananthapuram.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS

JUDGE

PR OP (FC).No.36 OF 2021

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APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF IA NO. 4105 OF 2019 IN OP(G & W) NO. 2660 OF 2019 ON THE FILES OF THE HON'BLE FAMILY COURT, TRIVANDRUM DATED 18.11.2019.

EXHIBIT P2 A TRUE COPY OF OBJECTIONS TO THE I.A NO.4105 OF 2019 IN OP(G & W) 2660 OF 2019 ON THE FILE OF LD.FAMILY COURT, TRIVANDRUM DATED 01.02.2020.

EXHIBIT P3 A TRUE COPY OF THE ORDER IN IA NO.

4105 OF 2019 IN OP(G & W) 2660 OF 2019 ON THE FILES OF THE LD FAMILY COURT, TRIVANDRUM DATED 02.11.2020.

EXHIBIT P4 A TRUE COPY OF INTERLOCUTORY PETITION ACCOMPANIED WITH AFFIDAVIT AT THE INSTANCE OF RESPONDENT FOR MODIFICATION OF ORDER OF THE LD.

FAMILY COURT DATED 23.12.2020.

EXHIBIT P5 A TRUE COPY OF COUNTER AFFIDAVIT FILED AT THE INSTANCE OF PETITIONER NO.1 AND NO.2 DATED 12.01.2021 FOR MODIFICATION OF THE ORDER OF THE LD.FAMILY COURT TRIVANDRUM.

EXHIBIT P6 A TRUE COPY OF INTERLOCUTORY APPLICATION ACCOMPANIED WITH AFFIDAVIT AT THE INSTANCE OF PETITIONER NO.1 AND 2 BEFORE THE LD. FAMILY COURT, TRIVANDRUM DATED 12.01.2021.