Kerala High Court
Smitha Antony vs Koshy Kurian on 7 April, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
OP (FC) NO. 140 OF 2022
AGAINST THE COMMON ORDER IN IA No.2/2021 AND IA No.5/2022 IN
OP No.772/2021 OF FAMILY COURT, PALA
PETITIONER:
SMITHA ANTONY
AGED 43 YEARS
D/O.ANTONY, VALAVANAL HOUSE, VECHUCHIRA P.O., RANNI
VILLAGE, RANNI TALUK, PATHANAMTHITTADISTRICT,
PIN - 686 511.
BY ADVS.
M.P.MADHAVANKUTTY
MATHEW DEVASSI
ANANTHAKRISHNAN A. KARTHA
RESPONDENTS:
KOSHY KURIAN
AGED 47 YEARS
S/O.KURIAN, KARUKAMPALLY HOUSE, NARIYANANI P.O.,
PONKUNNAM, KOTTAYAM DISTRICT, PIN - 686 506, NOW
RESIDING AT KARUKAMPALLY HOUSE, ERATHUVADAKARA
P.O., VELLAVOOR VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN - 686 543.
BY ADVS.
MANJU ANTONEY
R.ANAS MUHAMMED SHAMNAD
OTHER PRESENT:
SRI.ANIL MALHOTRA, AMICUS CURIAE
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
05.04.2022, THE COURT ON 07.04.2022 DELIVERED THE FOLLOWING:
O.P (FC) No.140 of 2022 2
A.MUHAMED MUSTAQUE & C.R
SOPHY THOMAS, JJ.
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O.P. (FC) No.140 of 2022
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Dated this the 7th day of April, 2022
JUDGMENT
Sophy Thomas, J.
The mother of four minor children is before us, challenging
Ext.P10 order of the Family Court, Pala dismissing her prayer for
interim custody, and permission to take the children to Australia.
2. The petitioner and respondent are husband and wife. Four
children were born in their lawful wedlock. The parents and the
children were all in Australia, as the petitioner was employed there
as a Staff Nurse. In the year 2019, the respondent came back to
his native along with the four children and since then, the children
were under his care and custody. The elder child, Maria Koshy,
lodged a complaint before Ponkunnam Police, alleging ill-treatment
from the part of her father and a crime was registered against him.
Thereafter, the elder child was with the maternal grandmother, and
the other children continued with the father. The petitioner came
down from Australia to see her children, but she was not permitted
by the respondent. So, she filed O.P No.772 of 2021 before Family
Court, Pala along with I.A No.2 of 2021 for interim custody of the
three children, who were under the custody of the respondent. The
Family Court directed the respondent to produce the children
before the court on 19.01.2022. But the respondent failed to do
so, and so, she approached this Court by filing O.P (FC) No.52 of
2022. This Court gave custody of the three children to the mother
subject to visitorial rights of the father, and the O.P (FC) was
disposed of directing the Family Court to take a decision on the
prayer for interim custody.
3. Meanwhile, the petitioner filed I.A No.5 of 2022 before the
Family Court for permitting her to take the children to Australia, as
it will be better for their education and well-being. After admitting
objections and hearing the rival contentions from either side, the
Family Court passed Ext.P10 common order in I.A No.2 of 2021
and I.A No.5 of 2022 granting interim custody of the children to the
petitioner only till 22.03.2022 and to return the three children to
the respondent, as she goes back to Australia. Her prayer for
permission to take them to Australia was also rejected.
4. Assailing Ext.P10 order, petitioner/mother filed above
O.P(FC) contending that, the elder daughter is being taken to
Australia as permitted by Family Court, Pathanamthitta in
O.P No.762 of 2021 filed by the respondent herein. The other
three children are also having valid visa, so that the petitioner can
take, all of them together to Australia now itself. If she is
permitted, they can be admitted in Australian school, this academic
year itself, so that they can continue their studies there, smoothly.
Originally, the children were studying in Australia, and the
respondent took them back to his native. He is living in a rented
house and he has no job or income. No female members are there
in his house to attend the children, especially the two adolescent
girl children. Whenever he goes out, he is locking the children
inside the rented house. He is not able to provide proper food,
dress or education to the children. The girl children, who are in
their adolescent age, needs frequent attention, and emotional
support of their mother for their welfare and well-being. The
petitioner is able to attend all their needs. The elder daughter, who
is now 15 years old, is capable of attending the younger children,
whenever the petitioner will be out for her job.
5. We tried our level best to have an amicable settlement
between the parties and persuaded them to go to Australia
together with the children. But, the petitioner would say that, she
is unable to bear the ill-treatment, both physical and mental, from
the part of the respondent, and she is taking steps to get their
marriage dissolved.
6. The O.P filed by the petitioner for getting guardianship and
custody of the three children is pending before the Family Court.
Only interim custody arrangements were made while the
petitioner/mother was available here. It is true that, the
petitioner/mother is employed in Australia as a Staff Nurse and she
is financially capable to look after the children. She is ready to
take the children to Australia and give them proper education and
all facilities in life. If the petitioner is permitted to take all the
children to Australia, they will grow together sharing the love and
care between siblings. According to petitioner, with the money sent
by her, the respondent was looking after the children. The younger
three children were with the respondent from 2019 onwards and
obviously, they are comfortable with their father.
7. Now the question mooted before us is whether this Court
exercising supervisory jurisdiction under Article 227 of the
Constitution can permit a father or mother to take the children
abroad when the dispute is pending between them in Family Court
regarding guardianship and custody of the children, and there is no
consensus arrived, regarding taking the children abroad.
8. We sought the assistance of Amicus Curiae Advocate
Sri.Anil Malhotra who is an expert in the field of child custody
matters, to get more insight into this issue. Learned Amicus Curiae
appeared before this Court online and submitted that, jurisdictional
Family Court is the proper forum to decide on the question of
guardianship of the person or the custody of or access to any
minor. The High Court exercising supervisory power under Article
227 of the Constitution cannot bye pass the Family Court to decide
on the question of guardianship of the person or custody of or
access to any minor. Before deciding the question of guardianship
and custody, if one party is permitted to take the children abroad,
the other party will be non-suited, as there is little scope for
enforcing orders of an Indian Court in a foreign land. Moreover,
India is not a signatory to the 1980 Hague convention on the civil
aspects of international child abduction (Hague Abduction
Convention) nor are there any bilateral agreement in force
between India and Australia concerning international parental child
abduction.
9. Going by Section 7(1) explanation (g) of the Family Courts
Act, 1984, and Section 9 of the Guardian and Wards Act, 1890, it is
manifestly clear that the suits and proceedings including the suit or
proceeding where any question of guardianship of the person of
any minor or his custody or access to him arises, whether governed
by any personal law, or the provisions to the Guardian and Wards
Act, would be cognizable only by the Family Court, if the matter
arises within the area over which the jurisdiction is exercisable by
the Family Court (Devilal Bhagat vs. Rekha Bhagat (2008 (3) KLT
S.N 14 (C.No.16).
10. O.P No.772 of 2021 filed by the petitioner for
guardianship and custody of the three children is still pending
before Family Court, Pala. Admittedly, the petitioner got custody
and permission to take the elder child Maria Koshy to Australia.
The respondent is opposing the prayer of the petitioner for custody
of the three children and also her request to take the children to
Australia. Before taking a decision, based on materials and
evidence, as to who is more competent to be the guardian of the
children, and with whom the custody of the children shall be more
safe, taking into account the welfare and well-being of the children,
the Family Court could not have permitted the mother to take the
children abroad. Pending O.P, if the petitioner is permitted to take
the children to Australia, the respondent will be non-suited. So, it
is for the Family Court to take a decision regarding the
guardianship and permanent custody of the younger three children.
The prayer of the petitioner to take them to Australia has to be
enquired into and adjudicated upon, taking into account all the
aspects of their well-being and welfare, rather than the rival claims
put forward by the warring couples. The court while exercising its
parens patriae jurisdiction should keep an open eye to the factual
aspects, and ground realities to find out what will be the best
option available to ensure the welfare of the children rather than
the rights asserted by the parties.
11. Now the mother is available in Kerala and so, as long as
the mother is available here, she is entitled to keep custody of the
children, reserving visitation rights for the father. Since the matter
needs an urgent decision, as the children are school going, the
Family Court, Pala can be directed to dispose O.P No.772 of 2021
without further delay. Pending that O.P, if the petitioner goes back
to Australia, the younger three children has to be returned to the
respondent, of course subject to the final decision in the O.P. So,
Ext.P10 order needs no interference except to the extent that the
children shall be under the care and custody of the petitioner, as
long as she is available in Kerala, reserving visitation rights for the
father.
In the result, the O.P (FC) is disposed of directing the Family
Court, Pala to dispose O.P No.772 of 2021 within a period of four
months from today. The petitioner shall be permitted to adduce
her evidence through electronic medium, if her physical presence is
not possible at the time of evidence.
We place on record our appreciation for the valuable
assistance rendered by the Amicus Curiae Adv.Sri.Anil Malhotra.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
smp
APPENDIX OF OP (FC) 140/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE O.P.NO.772/2021 DATED
20/12/2021 BEFORE THE FAMILY COURT, PALA.
Exhibit P2 A TRUE COPY OF THE I.A.NO.2/2021 IN
O.P.NO.772/2021 BEFORE THE FAMILY COURT,
PALA.
Exhibit P3 A TRUE COPY OF THE OBJECTION IN OP
NO.772/2021 BEFORE THE FAMILY COURT,
PALA.
Exhibit P4 A TRUE COPY OF THE OBJECTION IN
I.A.NO.2/2021 IN O.P.NO.772/2021 BEFORE
THE FAMILY COURT, PALA.
Exhibit P5 A TRUE COPY OF THE ORDER DATED 22/12/2021
IN I.A.NO.2/2021 IN O.P.NO.772/2021
BEFORE THE FAMILY COURT, PALA.
Exhibit P6 A TRUE COPY OF THE INTERIM ORDER DATED
11/02/02022 IN OP(FC) NO.52 OF 2022
PASSED BY THIS HON'BLE COURT.
Exhibit P7 A TRUE COPY OF THE INTERIM ORDER DATED
17/02/2022 IN OP(FC) NO.52 OF 2022 PASSED
BY THIS HON'LE COURT.
Exhibit P8 A TRUE COPY OF THE JUDGMENT IN OP(FC)
NO.52/2022 DATED 23/02/2022 PASSED BY
THIS HON'BLE COURT.
Exhibit P9 A TRUE COPY OF THE I.A.NO.5/2022 IN
O.P.NO.772/2021 BEFORE THE FAMILY COURT,
PALA.
Exhibit P10 A TRUE COPY OF THE COMMON ORDER IN
I.A.NO.2/2021 IN AND I.A.NO.5/2022 IN
O.P.NO.772/2021 PASSED BY FAMILY COURT,
PALA.
RESPONDENTS' EXHIBITS: NIL.
True Copy
P.S to Judge
smp
