Kerala High Court
Preethy Sunny vs John Daniel on 15 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 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
OP (FC) NO.530 OF 2021
AGAINST THE ORDER IN IA 16/2021 IN OP 1602/2019 OF FAMILY
COURT, THRISSUR
PETITIONER/RESPONDENT:
PREETHY SUNNY,
AGED 35 YEARS
D/O.DAISY SUNNY, KOOTTAMKULAM VEEDU, KURINJIKKAL
LANE, ANNAVILA, AYYANTHOLE P.O., THRISSUR DISTRICT,
PIN-680 003.
BY ADV P.K.PRIYA
RESPONDENT/PETITIONER:
JOHN DANIEL,
AGED 37 YEARS
S/O.DANIEL M.JOHN, MAVILAZHIKATH RAJ MANDIR, AYUR,
ILLAMULAYKKAL VILLAGE, KOLLAM, PIN-691 533.
BY ADVS.
R.S.REJITHA
P.T.MARY
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P (FC) No.530 of 2021 2
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
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O.P. (FC) No.530 of 2021
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Dated this the 15th day of February, 2022
JUDGMENT
A.Muhamed Mustaque, J.
This original petition is at the instance of the mother,
impugning an order of interim custody granted in favour of the
father. The operative portion of the impugned order reads thus:
"7. So considering these circumstances, I feel
that it is highly necessary for the welfare of the child to
be with his father for few days at least during the
vacation period. Therefore, I am inclined to modify the
earlier order, passed in I.A 3705/2019. In addition to
the visitation right already granted as per the said order
dated 04.01.2020, the petitioner is allowed to have
interim custody of the minor during the first half of
Onam, Christmas and Summer vacations.
8. The respondent shall intimate the petitioner
the date of commencement of such vacation and the
time and date of production of the minor before the
office of the court sufficiently earlier at least one week
before the commencement of the vacation".
2. The impugned order was passed by the Family Court on
11.10.2021. The Family Court had earlier passed an order vide
Ext.P1 on 04.01.2020. The operative portion of Ext.P1 order reads
thus:
"7. Considering all these circumstances, I am
inclined to direct the respondent to produce the minor
before office of the court at 10.30 a.m on every 2 nd and
4th Sunday so as to permit the petitioner to interact with
the child till 1.30 p.m".
3. Ext.P1 order was challenged by the petitioner before this
Court in OP (FC) No.351 of 2020. This Court dismissed the said
original petition vide Ext.P2 judgment, with the following
observation:
"This matter arises from an interim order. Taking
note of the tender age of the child, the Family Court only
permitted the respondent-father to interact with the child
on every second and fourth Sunday for a short duration.
We find no reason to interfere with such order of the
Family Court. Therefore, this original petition is only to
be dismissed. Accordingly, dismissed".
4. Ext.P2 judgment is dated 25.03.2021. It is to be noted
that, the earlier order was passed by the Family Court to allow the
father to have intimacy and interaction with the child. The parties
are living separately for more than three years and the child had
no occasion to familiarize with father. In the impugned order itself,
the Family Court noted that, due to the spread of Covid-19, the
child could not be with the company of the father for a pretty long
period and on some occasions, the mother failed to produce the
child before the Family Court. The father is residing at Kollam and
mother is residing at Thrissur. The distance between these two
districts is around 218 KM.
5. We are not against giving custody of the child to the
father as ordered in the impugned order. However, the minor child
without developing any intimacy with the father, it may not be safe
to give interim custody to the father for such a long duration as
ordered in the impugned order. It is appropriate the earlier order
dated 04.01.2020 continue to operate at least for three months.
The mother shall strictly comply with the said order. Thereafter,
the Family Court, after interacting with the child and the parties,
can take appropriate decision with regard to giving custody of the
child to father for short duration.
In the result, the impugned order is set aside for
reconsideration. Let the earlier order dated 04.01.2020 continue
to operate for a period of three months. Thereafter, the Family
Court shall consider giving custody of the minor child to the father
for short duration. We also allow the respondent/father to make
video calls to the minor child on alternate days between 7 p.m to
7.30 p.m. The petitioner/mother is directed to facilitate such video
calls by father and shall not cause any obstruction.
This original petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
smp
APPENDIX OF OP (FC) 530/2021
PETITIONER EXHIBITS:
Exhibit P1 TRUE COPY OF THE ORDER IN IA NO.3705 OF
2019 IN OP NO.1602 OF 2019 ON THE FILES
OF THE FAMILY COURT, THRISSUR DATED
04.01.2020.
Exhibit P2 TRUE COPY OF THE JUDGMENT DATED
25.03.2021 IN OP(FC) NO.351 OF 2020
PASSED BY THIS HONOURABLE COURT.,
Exhibit P3 TRUE COPY OF THE ORDER DATED 21.08.2020
IN IA NO.4 OF 2020 IN OP NO.1602 OF 2019
ON THE FILES OF THE FAMILY COURT,
THRISSUR.
Exhibit P4 TRUE COPY OF THE ORDER DATED 18.09.2020
IN IA NO.6 OF 2020 IN OP NO.1602 OF 2019
ON THE FILE OF THE FAMILY COURT,
THRISSUR.
Exhibit P5 TRUE COPY OF IA NO.16 OF 2021 FILED
BEFORE THE FAMILY COURT, THRISUSR BY THE
RESPONDENT.
Exhibit P6 TRUE COPY OF THE COUNTER IN IA NO.16 OF
2021 IN OP NO.1602 OF 2019 FILED BY THE
PETITIONER.
Exhibit P7 TRUE COPY OF THE ORDER DATED 11.10.2021
IN IA NO.16 OF 2021 IN OP NO.1602 OF 2019
ON THE FILES OF THE FAMILY COURT,
THRISSUR.
RESPONDENT'S EXHIBITS:
EXHIBIT R1(a) TRUE PAPER PRINT OUT COPIES OF THE SCREEN
SHOT OF VIDEO CALL THROUGH WHATSAPP.
EXHIBIT R1(b) TRUE COPY OF I.A No.17/2021 IN OP
No.1602/2019 OF FAMILY COURT, THRISSUR.
True Copy
P.S to Judge
smp
