Deepa M.K vs Pradeep Chandran C.V
2021 Latest Caselaw 5517 Ker

Mat.Appeal.No.391 OF 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

TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942

                  Mat.Appeal.No.391 OF 2020

AGAINST THE JUDGMENT IN OP 484/2018 DATED 31-01-2020 OF
               FAMILY COURT, OTTAPPALAM


APPELLANTS:

              DEEPA M.K.,
              AGED 32 YEARS,
              D/O. KESAVA MENON, MANIYANGHAT HOUSE,
              KANIYARCODE P.O., THIRUVILWAMALA,
              THALAPPILLI TALUK, PIN -680594.

              BY ADVS.
              SRI.P.R.JAYAKRISHNAN
              SRI.R.REJI KUMAR

RESPONDENT:

              PRADEEP CHANDRAN C.V.,
              AGED 38 YEARS, S/O. LATE RAMANCHANDRAN M.P.,
              PRAVITHA NIVAS, PATTAMBI P.O., PATTAMBI,
              PALAKKAD-679303.

              R1 BY ADV. SRI.R.SREEHARI

     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Mat.Appeal.No.391 OF 2020

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                      JUDGMENT

C.S.Dias,J.

Aggrieved by the judgment in O.P. 484/2018 of

the Family Court, Ottappalam, the respondent in the

original petition is in appeal. The respondent in the

appeal was the petitioner in the original petition.

2. The facts in the original petition germane

for determination of the appeal are: The respondent

was married to the appellant on 29.4.2012. A

daughter named 'Nilofar' was born in the wedlock on

19.2.2013. The appellant was not desirous to stay

in the matrimonial home. In May, 2015, the

respondent had arranged a job for the appellant in a

school at Pattambi. Thereafter, their relationship

deteriorated. The appellant used to quarrel with the

respondent and his family members for trivial issues.

In June, 2015, the appellant left with the child to Mat.Appeal.No.391 OF 2020

reside in her parental home. When the respondent

compelled the appellant to resume cohabitation, she

threatened him stating that she would institute cases

against him. With the intervention of mediators, the

appellant agreed to reside with the respondent

during the summer vacation of 2016. However, she

did not keep up to her promise. The appellant is not

permitting the respondent to see or interact with the

child. The respondent is residing with his mother

and he is prepared to look after to the welfare and

best interest of the child. Hence the original petition

seeking the permanent custody of the child.

3. During the pendency of the proceedings

before the Family Court, the respondent had filed

applications seeking interim custody of the child

during the school holidays. Even though the Family

Court directed the appellant to hand over the

interim custody of the child to the respondent, she Mat.Appeal.No.391 OF 2020

did not comply with the directions. In the said

circumstances, the Family Court struck of the

defence of the appellant and allowed the original

petition by giving the permanent custody of the child

to the respondent, with the visitation rights of the

appellant to see the child once in every month and

for five days during Onam and X'mas vacations and

a fortnight during the summer vacation of the child.

4. Confronted with the above judgment, the

appellant is before this Court.

5. Along with the memorandum of appeal, the

appellant had filed I.A Nos 2 and 3 of 2020 to stay

the operation of the judgment and to accept

additional evidence on record. This Court by order

dated 4.8.2020 has stayed the operation of the

impugned judgment.

6. The respondent filed I.A No.4/2020, seeking Mat.Appeal.No.391 OF 2020

permission to interact with the child through video

conferencing on daily basis till the determination

of the appeal.

7. When the application came up for

consideration, the parties were referred to

mediation. In the mediation proceedings, the parties

arrived at a consensus in I.A No.4/2020.

Accordingly, they executed a memorandum of

settlement, whereby the appellant has permitted the

respondent to interact/communicate with the child

through WhatsApp/Video Conferencing twice a week

on Wednesday and Sunday from 6.30 p.m to 6.45

p.m.

8. When the Mediator's report along with the

memorandum of settlement was placed before this

Court, to record the same, with the consent of the

respective counsel for the parties, we decided to

hear and dispose of the appeal itself. Mat.Appeal.No.391 OF 2020

9. Heard the learned counsel appearing for

the appellant and the learned counsel appearing for

the respondent.

10. In Yashita Sahu v. State of Rajasthan

and others [2020 SCC Online SC 50], the Hon'ble

Supreme Court has, inter alia, held that visitation

rights and contact rights are important for the

development of children, when the parents are living

separately. It has been held that contact rights

should be given to the parent who is denied custody

of the child for five to ten minutes every day, which

would help in maintaining and improving the bond

between the child and the parent who has been

denied custody.

11. In a recent decision in Smriti Madan

Kansagra v. Perry Kansagra [2020 KHC 6611], the

Hon'ble Supreme Court has reiterated that the

courts while exercising parents patria jurisdiction Mat.Appeal.No.391 OF 2020

should be guided by the sole and paramount

consideration of what would best sub-serve the

interest and welfare of the child.

12. The marriage as well as the paternity of the

child is admitted by both parties. Nilofar is a female

child, who is now 8 years old. She has been in the

permanent custody of the appellant since her birth.

She is said to be studying in a school named

'Pazhassi Raja', Thrissur.

13. Admittedly, the defence of the appellant

was struck off by the Family Court, by its order in

I.A No.2660/2019, for not complying with the

direction in I.A No.2583/2019. The appellant has not

challenged the order passed in I.A No.2660/2019,

which has become final. Therefore, the Family

Court, based on the un-controverted averments in

the original petition and the oral testimony of the

respondent allowed the original petition. Mat.Appeal.No.391 OF 2020

14. As the appellant had no defence in

O.P.484/2019, her contention in the appeal that the

Family Court does not have the jurisdiction to

entertain the original petition, as the child is not

ordinarily residing within the jurisdiction of the

present Family Court, does not hold good. It is

impermissible in law to raise the issue for the first

time in appeal. In light of the mandate under Order

XLI, Rule 23A of the Code of Civil Procedure, a case

cannot be remanded on a mere asking. As the 'lis'

can be determined in this appeal, we do not find any

ground to remand the case back to the Family Court,

for fresh consideration.

15. On a re-appreciation of the pleadings and

materials on record, the law laid down by the

Hon'ble Supreme Court in the afore-cited decisions,

and considering the fact that Nilofar is a female child Mat.Appeal.No.391 OF 2020

who is only aged 8 years and has been in the custody

of the appellant since her birth, notwithstanding the

contentions of both the appellant and the

respondent, we are of the definite opinion that the

impugned judgment has to be modified to put a

quietus to the 'lis', especially in light of the

memorandum of settlement executed between the

parties and to secure the welfare and best interest

of Nilofar. We are of the firm view that the

permanent custody of the child has to be given to the

appellant, reserving the contact and visitorial rights

of the respondent. If the said course is adopted, it

would avoid further litigation and would sub-serve

the interest and welfare of the child.

In the result, we allow the appeal in part, by

modifying the impugned judgment in the following

manner:

Mat.Appeal.No.391 OF 2020

(i) The impugned judgment in O.P.484/2018 is set aside.

(ii) The permanent custody of the child "Nilofar" is granted to the appellant.

(iii) The appellant shall permit the respondent to have contact rights with "Nilofar" through WhatsApp/Video Conferencing on every Wednesday and Sunday between 6.30 p.m to 6.45 p.m

(iv) The appellant shall hand over the interim custody of the child to the respondent on 6.3.2021 and 27.3.2021 from 11 a.m to 2 p.m at the premises of the Family Court, Thrissur. The child shall be handed over and returned before the Principal Counsellor of the said Court. A copy of this judgment shall be handed over to the Principal Counsellor.

(v) In the months of April and May, 2021, the appellant shall handover the interim custody of Nilofar to the respondent from 10.00 a.m on 19.4.2021 till 5.00 p.m on 24.4.2021 and from 10.00 a.m on 10.5.2021 till 5 p.m on 15.5.2021.

(vi) From June, 2021 onwards, the respondent shall be entitled to have interim custody of the child on every third Saturday from 10.00 a.m till the ensuing Sunday till 5.00 p.m. Mat.Appeal.No.391 OF 2020

(vii) In addition to the above arrangement, the respondent shall be entitled to have interim custody of the child for five days during Onam and X'mas vacations of Nilofar in 2021.

(viii) The venue for exchange of the child shall be before the Principal Counsellor of the Family Court, Thrissur.

(ix) The parties would be at liberty to approach the Family Court, Ottappalam, to seek for modification of the above interim arrangement after December, 2021, in case of change of circumstances, otherwise, the arrangement in this judgment shall continue in coming years also till Nilofar attains majority.

Sd/-

                           A.MUHAMED                 MUSTAQUE
                                           JUDGE


                                         Sd/-

                                  C.S.DIAS, JUDGE
ma/17/2/2021

                          /True copy/
 Mat.Appeal.No.391 OF 2020




                      APPENDIX
PETITIONER'S/S EXHIBITS:

ANNEXURE A1       CERTIFIED COPY OF JUDGMENT DATED
                  31/01/2020 IN OP NO.484/2018 OF
                  FAMILY COURT, OTTAPALAM.

ANNEXURE A2       `TRUE COPY OF AADHAAR CARD BEARING
                  NO.752920640134 OF MINOR CHILD
                  NILOFER ISSUED BY GOVERNMENT OF
                  INDIA.

ANNEXURE A3       TRUE COPY OF RATION CARD BEARING

NO.1842089872 DATED 15/03/2017 ISSUED BY TALUK SUPPLY OFFICER, THALAPPILLY TALUK, THRISSUR DISTRICT.

ANNEXURE A4 THE TRUE COPY OF PRE SCHOOL GRADUATION CERTIFICATE OF NILOFER ISSUED BY PRINCIPAL, PAZHASSIRAJA SCHOOL, KUTHAMPULLY.

ANNEXURE A5 TRUE COPY OF PROGRESS REPORT OF NILOFER ISSUED BY PAZHASSIRAJA SCHOOL.

ANNEXURE A6 THE TRUE COPY OF AADHAAR CARD BEARING NO.233406439976 OF APPELLANT ISSUED BY GOVERNMENT OF INDIA.

ANNEXURE A7 THE TRUE COPY OF OP NO.484/2018 FILED BY RESPONDENT BEFORE FAMILY COURT, OTTAPALAM.

ANNEXURE A8 THE TRUE COPY OF DISCHARGE SUMMARY DATED 31/07/2015 ISSUED BY DEPARTMENT OF NEURO SCIENCES, P.K. DAS INSTITUTE OF MEDICAL SCIENCES, OTTAPALAM.

ANNEXURE A9 THE TRUE COPY OF IA NO.2719/2019 PREFERRED BY APPELLANT BEFORE FAMILY COURT, OTTAPALAM.

ANNEXURE A10 THE TRUE COPY OF IA NOS. 2864/2019 PREFERRED BY APPELLANT BEFORE FAMILY COURT, OTTAPALAM.

Mat.Appeal.No.391 OF 2020

ANNEXURE A11 THE TRUE COPY OF IA NOL2865/2019 PREFERRED BY APPELLANT BEFORE FAMILY COURT, OTTAPALAM.

ANNEXURE A12 THE TRUE COPY OF IA NO.2888 PREFERRED BY APPELLANT BEFORE FAMILY COURT, OTTAPALAM.