Kerala High Court
Martin Thomas vs Anjana Abraham on 1 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
OP (FC) NO. 37 OF 2022
IN OP 2146/2020, FAMILY COURT, ERNAKULAM
PETITIONER/RESPONDENT:
MARTIN THOMAS
AGED 42 YEARS
SON OF SEBASTIAN KADANCHIRA HOUSE, KURUMBANADOM
P.O, CHANGANASSERY TALUK, KOTTAYAM DISTRICT
KOTTAYAM, PIN - 686536
BY ADV JOHN MATHEW (THEREZHATH)
RESPONDENT/PETITIONER:
ANJANA ABRAHAM
AGED 37 YEARS
DAUGHTER OF DANIEL ABRAHAM, SKYLINE RANCH,HOUSE
NO.4AB, THRIPUNITHURA, ERNAKULAM DISTRICT
ERNAKULAM, PIN - 682301
BY ADVS.
MANU RAMACHANDRAN
S.SREEKUMAR (SR.)(S-571)
M.KIRANLAL(K/963/2009)
R.RAJESH (VARKALA)(K/78/2000)
T.S.SARATH(K/257/2012)
SAMEER M NAIR(K/000481/2017)
GEETHU KRISHNAN(K/001199/2021)
HARSHA SUSAN SAM(K/000880/2019)
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
01.02.2022, ALONG WITH OP (FC).49/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
O.P.(FC) Nos.37 and 49 of 2022
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
OP (FC) NO. 49 OF 2022
IN OPGW 2146/2020 FAMILY COURT, ERNAKULAM
PETITIONER/PETITIONER:
ANJANA ABRAHAM
AGED 37 YEARS
D/O DANIEL ABRAHAM,
SKYLINE RANCH VILLA, HOUSE NO.4 AB, MARKET ROAD,
THRIPUNITHURA, ERNAKULAM DISTRICT
, PIN - 682301
BY ADVS.
MANU RAMACHANDRAN
M.KIRANLAL
R.RAJESH (VARKALA)
T.S.SARATH
SAMEER M NAIR
HARSHA SUSAN SAM
GEETHU KRISHNAN
S.SREEKUMAR (SR.)(S-571)
RESPONDENT/RESPONDENT:
MARTIN THOMAS
AGED 42 YEARS
S/O SEBASTIAN,
KANDACHIRA HOUSE, KURUMBANADAM P.O, MADAPPILLY
VILLAGE,
CHANGANASSERY TALUK, KOTTAYAM DISTRICT
, PIN - 686536
BY ADV JOHN MATHEW (THEREZHATH)
O.P.(FC) Nos.37 and 49 of 2022
3
THIS OP (FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 01.02.2022, ALONG WITH OP (FC).37/2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(FC) Nos.37 and 49 of 2022
4
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
------------------------------------------------
O.P.(FC) Nos.37 and 49 of 2022
-------------------------------------------------
Dated this the 01st day of February, 2022
JUDGMENT
A.Muhammed Mustaque, J.
These matters arise from an order passed by the Family
Court giving interim custody of the minor child to the petitioner
in OP(FC) No. 49/2022. The petitioner in the above case viz.,
Anjana Abraham, is the mother of Master Andrew Thomas
Martin, born on 10.04.2010. The custody of the child is with the
father Martin Thomas, who is the petitioner in OP(FC)
No.37/2022. The custody was given to the father based on a
compromise entered between parties in O.P.(G&W)
No.1008/2017 on the file of the Family Court, Kottayam. As per
the compromise, the mother is also entitled to intermittent
custody during vacation. The mother is working in U.A.E. Martin
Thomas, father of the child resides at Changanacherry. The
O.P.(FC) Nos.37 and 49 of 2022
mother, Anjana Abraham moved the Family Court, Ernakulam for
permanent custody of the child in O.P (G&W) No. 2146/2021.
She also moved an application for interim custody vide
I.A.No.3569/2020. This application was dismissed by the Family
Court. Thereupon, Anjana Abraham approached this Court in
O.P(FC) No. 256/2021. This Court taking note of the fact that
the custody was given to father Martin Thomas based on an
order passed in O.P.No.1008/2017 on the file of the Family
Court, Ettumanoor, held that without varying that order such
interlocutory application cannot be considered by the Family
Court.
2. Aggrieved by the order, Martin Thomas approached
the Apex Court in SLP No.6959/2021. This matter was taken up
along with another SLP filed by the Anjana Abraham arising from
Habeas Corpus proceedings. The Apex Court on 09.12.2021
disposed the SLP affirming the order, dismissing the application
for interim custody filed by Anjana Abraham. The child was by
the time taken abroad by Anjana Abraham. She was also given
time up to 31.12.2021 to bring back the child and hand him over
to Martin Thomas.
O.P.(FC) Nos.37 and 49 of 2022
3. On 11.11.2021, the Family Court again passed an
order giving interim custody to the mother. This order is
challenged by Martin Thomas in O.P(FC) No. 37/2022. Anjana
Abraham approached this Court in O.P(FC) No. 49/2022 for
implementation of the order passed by the Family Court and
allowing Anjana Abraham to take the child abroad.
4. After hearing both the counsels, we are dismayed by
the order passed by the Family Court. The application for interim
custody has been dismissed by this Court as well as the Apex
Court. The Apex Court specifically directed the Family Court to
adjudicate the dispute on guardianship and custody including
interim custody before 31.03.2022. It is appropriate to refer to
the relevant portion of the Apex Court order.
"We direct the Family Court to hear and dispose of
the pending applications being O.P.(F.C) No. 256 of
2021, GOP No.729/2020 and G.O.P No. 2146 of 2020
pertaining to guardianship, interim custody and
modification of the order recording the compromise
in accordance with law within three months from the
date of communication of this Court."
5. The reference to the interim custody obviously refers
O.P.(FC) Nos.37 and 49 of 2022
to such custody to be considered along with the final order to be
passed in the matter. The dismissal of interlocutory applications
seeking interim custody has been affirmed by the Apex Court.
When the orders in an interlocutory application have been
affirmed, it is not open for the Family Court to reopen and pass
orders in dereliction to the orders of this Court and the Apex
Court. When we indicated this, the learned counsel appearing for
Anjana Abraham submits that they are not pressing the
application for interim custody. It is submitted that the case was
posted today and on account of the pendency of the original
petition, it was not taken up.
6. Learned counsel for Martin Thomas would submit that
the petition before the Family Court is not maintainable and
without addressing the maintainability of such petition, the
Family Court should not proceed further. It is further submitted
that he has filed an application seeking a direction to Anjana
Abraham, to hand over the transfer certificate of the child, so as
to enable the ward to continue his education in Kerala. It is
submitted that the application has been dismissed based on the
order passed in the interlocutory application.
O.P.(FC) Nos.37 and 49 of 2022
7. In view of the fact that the application for interim
custody has not been pressed; we find there is no impediment
for Family Court proceeding with the matter for final disposal. In
that process, the Family Court shall consider the issue regarding
the maintainability and also any prayer sought by Martin
Thomas.
8. With the above liberty, the Original Petitions are
disposed of. Taking note of the outer limit fixed by the Apex
Court, the Family Court shall proceed with the matter for final
adjudication, as expeditiously as possible.
Sd/-A.MUHAMED MUSTAQUE, JUDGE
Sd/-SOPHY THOMAS, JUDGE
lsn
O.P.(FC) Nos.37 and 49 of 2022
APPENDIX OF OP (FC) 49/2022
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE G.O.P NO.2146/2020
ON THE FILES OF FAMILY COURT, ERNAKULAM
Exhibit P2 THE TRUE COPY OF THE COMPROMISE DECREE
DATED 04.04.2018 IN O.P NO. 1008/2017 ON
THE FILES OF FAMILY COURT, ETTUMANOOR
Exhibit P3 THE TRUE COPY OF THE ORDER DATED
20.03.2021 IN I.A NO. 3569/2020
Exhibit P4 THE TRUE COPY OF THE JUDGMENT DATED
07.04.2021 IN O.P(FC) NO.256/2021 OF
THIS HON'BLE COURT
Exhibit P5 THE TRUE COPY OF THE COMMON ORDER DATED
09.12.2021 IN SLP(C) NO.6959/2021 OF THE
APEX COURT
Exhibit P6 THE TRUE COPY OF THE I.A NO. 6440/2021
IN EXT.P1 O.P
Exhibit P7 THE TRUE COPY OF THE OBJECTION FILED BY
THE RESPONDENT AGAINST EXT.P6 I.A
Exhibit P8 THE TRUE COPY OF THE ORDER DATED
11.01.2022 IN I.A NO. 6440/2021 IN O.P
NO.2146/2020 ON THE FILES OF FAMILY
COURT, ERNAKULAM
Exhibit P9 THE TRUE COPY OF THE I.A NO.422/2022 IN
EXT.P1 O.P
Exhibit P10 THE COMMUNICATION DATED 29.12.2021
ISSUED TO THE PARENTS FROM THE SAFA
SCHOOL.
O.P.(FC) Nos.37 and 49 of 2022
Exhibit P11 TRUE COPY OF THE EMAIL COMMUNICATION
DATED 22.01.2022 BY THE WARD TO THE
PETITIOENR-MOTHER
O.P.(FC) Nos.37 and 49 of 2022
APPENDIX OF OP (FC) 37/2022
PETITIONER EXHIBITS
Exhibit p1 THE TRUE COPY OF THE COMPROMISE PETITION
FILED BY THE PETITIONER AND RESPONDENT
BEFORE THE FAMILY COURT AT ETTUMANOOR AS
I.A. NO. 635 / 2018 IN O.P. (G&W) NO
1008 / 2017 AND THE COMPROMISE DECREE
AND JUDGEMENT PASSED THERETO
Exhibit P2 THE TRUE COPY OF THE ORDER DATED
20/03/2021 PASSED BY THE FAMILY COURT,
ERNAKULAM IN I.A. 3569 /2020 IN G.O.P
2146 / 2020
Exhibit P3 THE TRUE COPY OF THE ABOVE SAID ORDER
DATED 07/04/2021 PASSED BY THIS
HON’BLE COURT IN O.P. (F.C) NO
256/2021
Exhibit P4 THE TRUE COPY OF THE ABOVE SAID FIR NO
791 /2021 DATED 01/07/2021 REGISTERED
AGAINST THE RESPONDENT AND HER HUSBAND
AT TRIPUNITHURA POLICE STATION FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 363,
420 & 468 R/W 34 OF IPC
Exhibit P5 THE TRUE COPY OF THE ABOVESAID ORDER
DATED 12.08.2021 PASSED BY THIS HON'BLE
COURT IN W.P. (CRL.) NO 196/2021
Exhibit P6 THE TRUE COPY OF THE AFORESAID COMMON
ORDER DATED 09.12.21 PASSED BY THE
HON'BLE SUPREME COURT IN S.L.P. (C) NO
6800/2021 AND S.L.P. (CRL.) NO 6956/2021
Exhibit P6 (a) THE TRUE COPY OF THE ORDERS DATED
16/12/2021 PASSED BY THIS HON'BLE COURT
IN W.P. (CRL.) 196 / 2021
Exhibit P 6(b) THE TRUE COPY OF THE ORDERS DATED
O.P.(FC) Nos.37 and 49 of 2022
16/12/202103/01/2022 PASSED BY THIS
HON'BLE COURT IN W.P. (CRL.) 196 / 2021
Exhibit P7 THE COPY OF AFORESAID IA 6440 / 2021 IN
G.O.P. 2146 / 2020 DATED 29.12.2021
FILED BY THE RESPONDENT BEFORE THE
FAMILY COURT, ERNAKULAM
Exhibit P8 THE TRUE COPY OF THE AFORESAID OBJECTION
DATED 04.01.2022 FILED BY THE PETITIONER
AGAINST EXT.P7 PETITION
Exhibit P9 THE TRUE COPY OF AFORESAID I.A 42/2022
IN G.O.P. NO 2146/ 2020 DATED 05.12.2022
FILED BY THE PETITIONER / FATHER BEFORE
THE FAMILY COURT, ERNAKULAM
Exhibit p10 THE TRUE COPY OF INTIMATION REGARDING
THE DISTANCE ONLINE EDUCATION, GIVEN BY
SAFA INTERNATIONAL SCHOOL, DUBAI, BY WAY
OF EMAIL COMMUNICATION DATED 10.01.2022
Exhibit P11 THE TRUE COPY OF INTIMATION REGARDING
THE DISTANCE ONLINE EDUCATION, GIVEN BY
SAFA INTERNATIONAL SCHOOL, DUBAI, BY WAY
OF EMAIL COMMUNICATION DATED 10.01.2022
Exhibit p12 THE COPY OF THE IMPUGNED ORDER DATED
11/01/2022 PASSED BY THE FAMILY COURT,
ERNAKULAM IN IA 6440/21 IN G.O.P. 2146/
2020 PERTAINING TO TAKE AWAY THE CHILD
FROM THE JURISDICTION OF THE COURT
Exhibit P13 THE TRUE COPY OF THE E-MAIL
CORRESPONDENCES DATED 16/01/2022 BETWEEN
THE MINOR CHILD AND THE SAFA SCHOOL
AUTHORITIES
Exhibit P14 THE TRUE COPY OF THE ABOVESAID I.A. NO 2
/ 2021 IN S.L.P (C) 6959/2021 DATED
09/11/2021 FILED BY THE RESPONDENT
O.P.(FC) Nos.37 and 49 of 2022
Exhibit P15 THE TRUE COPY OF THE ABOVE SAIDGOP
2146/2020 FILED BY THE RESPONDENT/MOTHER
BEFORE THE FAMILY COURT, ERNAKULAM
Exhibit P16 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER/FATHER IN THE GOP 2146/2020,
PENDING ON THE FILE OF THE FAMILY COURT,
ERNAKULAM
Exhibit P17 TRUE COPY OF THE I.A.NO./2022 IN GOP
2146/2020 PENDING ON THE FILE OF FAMILY
COURT, ERNAKULAM.
RESPONDENTS EXHIBITS NIL
TRUE COPY
P.A TO JUDGE
LSN
