Asokan.G vs Vijithakumari [email protected] Vijitha
2021 Latest Caselaw 696 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

            THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                                   &

                 THE HONOURABLE MRS. JUSTICE M.R.ANITHA

     FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

                         OP (FC).No.511 OF 2020

 AGAINST THE ORDER/JUDGMENT IN OPGW 421/2016 DATED 22-10-2020 OF
                    FAMILY COURT, KATTAPPANA


PETITIONER/S:

                ASOKAN.G
                AGED 49 YEARS
                S/O.GOVINDHAN ACHARI, CHARUVILA (H), POOYAPPALLY
                KARA, POOYAPPALLY VILLAGE, KOTTARAKARA TALUK, KOLLAM
                DISTRICT, NOW RESIDING AT CHARUVILA VEEDU,
                NEDUMKANDAM P.O., NEDUMKANDAM, IDUKKI 685 553

                BY ADV. SRI.BASANT BALAJI

RESPONDENT/S:

                VIJITHAKUMARI [email protected] VIJITHA
                D/O.NARAYANAN, ARUVIKUZHIYIL (H), EETTITHOPPE KARA,
                KALKOONTHAN VILLAGE, UDUMBUMCHOLA TALUK, AND WORKING
                AS SENIOR CLERK, SUPERINTENDENT OF POLICE OFFICE,
                PAINAVU, IDUKKI 685 603

                R1 BY ADV. SRI.M.R.VENUGOPAL
                R1 BY ADV. SMT.DHANYA P.ASHOKAN

       THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
  08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (FC).No.511 OF 2020

                                2



                          JUDGMENT

Dated this the 8th day of January 2021

K. Vinod Chandran, J.

The challenge in the above original petition is against Exts.

P8 and P9 orders. We are thoroughly dissatisfied with the

manner in which the Family Court has dealt with the issue

especially regarding the custody of the children. A one-line order

has been passed upsetting the final arrangement made in a

compromise order. Admittedly, the compromise permitted the

father to have the custody of the minors once in a month,

including 2nd Saturday and half of Onam and Christmas vacations

and for 15 days during mid-summer vacation. The children were

being picked up from the School on Friday prior to 2 nd Saturday

and delivered back to the school on Monday morning itself. Due

to the pandemic situation, the children were not going to School

and hence the respondent - wife did not permit the arrangement

to be carried out.

2. It is stated by the learned counsel for the respondent

that a detailed objection was filed to the I.A. filed by the OP (FC).No.511 OF 2020

petitioner and after interaction with the children the order has

been passed. However, no such details are available in the order.

The order passed has to disclose the reasons for refusing the

prayer sought and in passing such cryptic orders the Family

Court abdicates its functions.

3. We understand that a modification has been sought for

before the Family Court; but unless the court adjudicates on the

same the earlier arrangement agreed to in Ext.P2 has to be

continued. The children were reluctant to go with the father only

since his company was deprived to them for long due to the

pandemic situation. In this appeal, earlier a Division Bench,

wherein one of us (MRA. J) was a party interacted with the

children and the parties. Finding that the children were

reluctant the petitioner -father agreed that the children would be

collected at 10 a.m for three days from 30.12.2020 and given

back to the custody of the mother at 5 p.m. This was because the

children did not have the company of the father for a long

period.

4. Learned counsel for the petitioner submits that the

father had the custody of the children as directed by this Court OP (FC).No.511 OF 2020

by order dated 29.12.2020 for three days and they were happy.

In such circumstances, we do not find any reason to modify the

order passed in Ext.P2. We direct the respondent to comply with

the orders passed therein. Learned Counsel for the respondent

placed reliance on 2017 KHC 3568 Anilkumar v. Roshana Rajan

and 2016 (1) KHC 1 Sobhana Nair v. Shaji, in which another

Division Bench held that the custody of minor children are

temporary and modifiable with the changed conditions and

circumstance. We bow to the said proposition but the fact

remains that here the children were reluctant only since the

father could not have their company for long. This prompted the

mother to move the fore-stated application.

5. The interim arrangement shall be continued with the

father taking the children from the police station in which the

mother is said to be working on Friday evenings and brought

back on Sunday evening. We make it clear that if later any

application is filed by either parties for modification, the Family

Court will be entitled to consider the same on merits but

however with a speaking order.

6. The Family Court would also remember the onerous

responsibility in considering custody matters, exercising the OP (FC).No.511 OF 2020

'parens patriae' jurisdiction when due to marital discords the

children are deprived company of both of their parents in the

same house. It should be realized that for wholesome and proper

bringing up, the company and guidance of both the parents are

necessary and it is the duty of the Courts to ensure it, at least by

interim arrangements for the parent who is denied permanent

custody; that too in a fruitful manner. The Courts should also be

sensitive to the sentiments of the estranged parent who craves

company of his children. We once more place on record our

disapproval for the manner in which the order was passed.

Sd/-

K.VINOD CHANDRAN

JUDGE

Sd/-

                                            M.R.ANITHA

SHG                                           JUDGE
 OP (FC).No.511 OF 2020




                           APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE ORDER DTD. 31/7/2018 IN

OP(H.M.) NO.333/2016 ON THE FILE OF FAMILY COURT KATTAPPANA

EXHIBIT P2 THE TRUE COPY OF THE ORDER DTD. 31.7.2018 IN O.P.(G AND W) NO.421/2016 ON THE FILE OF FAMILY COURT KATTAPPANA

EXHIBIT P3 TRUE COPY OF THE LETTER GIVEN BY THE PETITIONER TO THE PRINCIPAL OF THE KENDRIA VIDHYALA SCHOOL

EXHIBIT P4 TRUE COPY OF THE LETTER DTD. 18.7.2020 ISSUED BY THE PRINCIPAL OF KENDRIYA VIDYALAYA PAINAVU, IDUKKI TO THE PETITIONER

EXHIBIT P5 TRUE COPY OF IA NO.1/2020 IN O.P.(G AND W) NO.421/2016 ON THE FILE OF FAMILY COURT KATTAPPANA

EXHIBIT P6 TRUE COPY OF THE THE I.A.NO.2/2020 IS FILED BY THE PETITIONER

EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN IA. NO.2/2020

EXHIBIT P8 TRUE COPY OF THE ORDER DTD. 22/10/2020 IN I.A.NO.1/2020 IN O.P.(G AND W) 421/2016

EXHIBIT P9 TRUE COPY OF THE ORDER DATED 22.10.2020 IN I.A.NO.2/2020 IN O.P.(G AND W) 421/2016