Kerala High Court
Jithesh Sunny vs Jithesh Sunny on 10 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH
WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942
OP (FC).No.502 OF 2020
AGAINST THE ORDER IN IA 1485/2020 IN OPGW 208/2020 DATED 28-07-
2020 OF FAMILY COURT,ERNAKULAM
PETITIONER/RESPONDENT/RESPONDENT:
JITHESH SUNNY
AGED 42 YEARS
S/O. SUNNY, CHERUVATHUR HOUSE, CHOTTANIKKARA,
KURIKKAD, ERNAKULAM.
BY ADVS.
SRI.BABU CHERUKARA
SRI.SEVI VARGHESE
RESPONDENT/PETITIONER/PETITIONER:
SIMY JOSEPH, AGED 37 YEARS
D/O. C.K.JOSEPH, CHENNOTHUMALIL, KOTTAPADY P.O.,
KOTHAMANGALAM, ERNAKULAM DISTRICT-686692.
BY ADV. SRI.K.V.SABU
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(FC).No.502/2020
2
JUDGMENT
Dated this the 10th day of March 2021
A.MUHAMED MUSTAQUE, J
The challenge is against the order dated 28.7.2020
passed in IA.No.1485/2020 in O.P.(G&W) No.208/2020 (Ext.P3)
and Ext.P5 order dated 26.8.2020 of the Family Court,
Ernakulam, in regard to the interim custody of the elder
boy child born in the wedlock between the petitioner and
respondent. There are three children born in the wedlock.
Two children are admittedly with the mother/respondent
herein. She filed O.P.(G&W)No.208/2020 to get the custody
of the elder child. The above applications for interim
custody have been dismissed. However, she was permitted to
get the interim custody of the elder child on every 2 nd and
4th Saturdays and respective ensuing Sundays with over night
stay from 10 am on Saturdays till 5 pm on Sundays.
2. As per the order dated 19.2.2021, this Court
granted custody of the children to mother and the children
are now with mother-respondent herein. The most important
factor to be taken note of is that regarding the welfare of
the children, all children should be permitted to reside
together to create a bonding between them. The Family
O.P.(FC).No.502/2020
Court omitted to note this fact and allowed the father to
have the custody of the elder child. We find that such a
decision was not the proper course, taking note of the
welfare of the child. It is not proper to separate one
child from the mother. All the siblings should reside
together under the care of parents. In view of the fact
that two children are with the mother, it is not proper
that the elder child alone is residing with the father. At
the same time, the father should not be deprived of his
visitorial right.
3. In such circumstances, we are of the view that the
father should be allowed to interact with the child on
every Saturdays from 11 am till 4 pm, except on 2nd
Saturday. The father can take the child from the premises
of the Family Court, Ernakulam and shall hand over the
child back to the mother at the same premises at 4 pm.
4. There are allegations against the capacity of
mother. She is a working women who is taking care of the
children. It is submitted that one of the brothers of the
mother is a mentally challenged person. It is appropriate
that the CWC, Ernakulam to supervise the well being of the
children. We direct the CWC also to ensure care and
protection to the children by the mother while the children
are with the mother. The CWC shall file a report before
the Family Court regarding the same. It is appropriate
O.P.(FC).No.502/2020
that monthly report is filed before the Family Court, till
the proceedings are finalised. Registry shall forward a
copy of this judgment to the CWC.
With the above observations and directions the impugned
orders are set aside. This OP(FC) is disposed of.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
kp True copy JUDGE
P.A. To Judge
O.P.(FC).No.502/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE MARK LIST ISSUED FROM
GREEN VALLEY PUBLIC SCHOOL, KOTHAMANGALAM
IN THE NAME OF THE MINOR CHILD JEWSIN
JITHESH.
EXHIBIT P2 TRUE COPY OF THE PERIODIC TEST MARK SHEET
ISSUED BY THE PRINCIPAL ST. SEBASTIAN'S
PUBLIC SCHOOL, UDAYAMPEROOR.
EXHIBIT P3 TRUE COPY OF THE ORDER IN I.A.NO.1485/2020
IN G.O.P.NO.208 OF 2020 DATED 28.7.2020 OF
THE FAMILY COURT, ERNAKULAM.
EXHIBIT P4 TRUE COPY OF THE CERTIFICATE ISSUED BY THE
IMMANUEL MARTHOMA SUNDAY SCHOOL,
THIRUVANKULAM DATED 14.8.2020.
EXHIBIT P5 TRUE COPY OF THE COMMON ORDER IN
I.A.NO.2403/2020 & I.A.NO.2567/2020 IN
G.O.P.NO.208/2020 OF FAMILY COURT,
ERNAKULAM DATED 26.8.2020.
EXHIBIT P6 TRUE PHOTOGRAPH SHOWING THE DAMAGE CAUSED
TO PETITIONER'S CAR AND PLANT POTS.
