Sonia Varghese vs The Union Of India
2022 Latest Caselaw 4128 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
                        WP(C) NO. 13073 OF 2021
PETITIONER:

          SONIA VARGHESE,
          AGED 36 YEARS
          D/O.VARGHESE ABRAHAM, PATHILTHAZHE MADOM,
          RAMANKARI (P.O), ALAPPUZHA DISTRICT.
          BY ADVS.
          S.SHANAVAS KHAN
          S.INDU


RESPONDENTS:

    1     THE UNION OF INDIA,
          MINISTRY OF OVERSEAS INDIAN AFFAIRS, REPRESENTED BY THE
          SECRETARY, AKBAR BHAVAN, CHANAKYAPURI,
          NEW DELHI-110 001.
    2     THE PRINCIPAL SECRETARY TO GOVERNMENT,
          MINISTRY OF EXTERNAL AFFAIRS, AKBAR BHAVAN,
          CHANAKYAPURI, NEW DELHI-110 001.
    3     THE CONSULATE GENERAL OF INDIA,
          INDIAN EMBASSY, KUWAIT, DIPLOMATIC ENCLAVE, ARABIAN
          GULF STREET, P.O.BOX 1450, SAFAT-13015, KUWAIT.
    4     JOSEPH K.CHACKO,
          AGED 37 YEARS
          S/O.KUNJACKO MATHEW, PLOT NO.7, CHITTIBABU NAGAR,
          PALLIKARANAI, CHENNAI, TAMIL NADU - 600 117.
          BY ADV SRI.B.RAMACHANDRAN, CGC



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 13073 OF 2021
                                   2



                 P.V.KUNHIKRISHNAN, J
               -------------------------------
               W.P.(C)No. 13073 of 2021
              --------------------------------
          Dated this the 7th day of April, 2022

                             JUDGMENT

The above writ petition is filed with the following prayers:

"(i) issue a writ of mandamus, or any other writ, order or direction directing the 3 rd respondent to issue visa to the petitioner's son namely Alwin Joseph without insisting on consent of the 4 th respondent or order from a competent Court of Law.

(ii) Declare that the insistence of consent of father/Court Order for issuance of visa to petitioner's son for taking him to Kuwait is illegal and unwarranted in view of dissolution of marriage between parties and

(iii) pass such other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."[SIC]

2. The petitioner is a B.Sc. Nursing graduate

and is presently working at Farwaniya Medical Centre,

Kuwait. It is the case of the petitioner that she is in

Kerala from March 2021 onwards. She married the 4 th WP(C) NO. 13073 OF 2021

respondent as per Christian religious rites and

ceremonies on 09.01.2012. A baby boy namely Alwin

Joseph was born in the said relationship on 07.08.2013.

Subsequently, the relationship became strained and

thereafter the petitioner as well as her child are under

the care and protection of her parents. Subsequently

the matter reached the Family court which resulted in

Ext.P2 judgment by which the marriage between the

petitioner and the 4th respondent is dissolved.

According to the petitioner, the child is now aged 8

years and is studying at Father Thomas Porukara

Central School, Chambakkulam. The petitioner wants

to take the child to her work place so that she can gave

him full attention. Hence she approached the 3rd

respondent for issuance of visa in favour of the child.

The said application was rejected by the 3 rd respondent

observing that visa can be granted only

on production of consent letter from the father of the

child or in the alternative on production of WP(C) NO. 13073 OF 2021

order from a competent Court of law. Hence this writ

petition is filed.

3. Heard the learned counsel appearing for the

petitioner and the learned CGC. This Court issued

notice to the 4th respondent. There is no appearance.

Thereafter paper publication is also taken and even now

there is no appearance for the 4th respondent.

4. The counsel for the petitioner reiterated his

contentions in the writ petition. The learned CGC

submitted that, unless there is an order from the Court

or a consent from the father of the child, visa can not

be issued.

5. There is no dispute regarding the fact that

the petitioner is the mother of the child. Even though

notice is issued to the 4th respondent, there is no

appearance for the 4th respondent. In such

circumstances, it will be an injustice if the petitioner is

not allowed to take her child to her work place.

Therefore the prayer in the writ petition can be allowed. WP(C) NO. 13073 OF 2021

Therefore, this writ petition is allowed in the

following manner:

i. The 3rd respondent is directed to issue visa to the

petitioner's son namely Alwin Joseph without insisting

for a consent from the 4th respondent, if the

application is otherwise in order.

Sd/-

P.V.KUNHIKRISHNAN JUDGE DM WP(C) NO. 13073 OF 2021

APPENDIX OF WP(C) 13073/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE REGISTRATION FORM DATED 27.04.2017 ISSUED FROM FATHER THOMAS PORUKARA CENTRAL SCHOOL, CHAMBAKKULAM.

EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 29.04.2017 IN OP(DIVORCE) 795/2016 OF THE HON'BLE FAMILY COURT, ALAPPUZHA. EXHIBIT P3 TRUE COPY OF THE PASSPORT NO.R0946451 ISSUED IN FAVOUR OF PETITIONER'S SON. EXHIBIT P4 TRUE COPY OF THE OP(G & W) NO.237/2021 FILED BY THE PETITIONER BEFORE THE HON'BLE FAMILY COURT, ALAPPUZHA.

EXHIBIT P5 TRUE COPY OF THE IA 2/2021 DATED 19.04.2021 IN OP (G & W) NO.237/2021 FILED BEFORE THE HON'BLE FAMILY COURT, ALAPPUZHA.

EXHIBIT P6 TRUE COPY OF THE IA NO.1 OF 2021 IN OP(G & W) NO.237/2021 FILED BEFORE HON'BLE FAMILY COURT, ALAPPUZHA. EXHIBIT P7 TRUE COPY OF THE CERTIFICATE DATED 15.04.2021 ISSUED BY PRINCIPAL, FR.THOMAS PORUKARA CENTRAL SCHOOL, CHAMPAKULAM, ALAPPUZHA.

RESPONDENTS EXHIBIS : NIL

//TRUE COPY//

PA TO JUDGE