Smitha Antony vs Koshy Kurian
2022 Latest Caselaw 2079 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                             &
         THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
  WEDNESDAY, THE 23RD DAY OF FEBRUARY 2022 / 4TH PHALGUNA,
                           1943
                  OP (FC) NO. 52 OF 2022
  AGAINST THE ORDER IN IA 2/2021 IN OP 772/2021 OF FAMILY
                        COURT, PALA
PETITIONER/S:

         SMITHA ANTONY, AGED 43 YEARS,
         D/O.ANTONY, VALAVANAL HOUSE, VECHUCHIRA P.O.,
         RANNI VILLAGE, RANNI TALUK, PATHANAMTHITTA
         DISTRICT, PIN - 686 511.
         BY ADVS.
         M.P.MADHAVANKUTTY
         MATHEW DEVASSI
         ANANTHAKRISHNAN A. KARTHA


RESPONDENT/S:

         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.
         ABRAHAM GEORGE JACOB
         C.MURALIKRISHNAN (PAYYANUR)
         AKSHAY R


THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP (FC) No.52/2022                  2



                             JUDGMENT

A.Muhamed Mustaque, J.

The dispute is between the petitioner-mother and

the respondent-father in regard to the custody of four

minor children. Based on the orders of this Court, the mother is given custody. The children were, in fact,

studying in a school in Australia. They came down to

India sometime in 2019. The mother is working as a

Nurse in Australia. She intends to go back to

Australia. She also wants to take the children along

with her. We are of the view that the Family Court to

take up the application for interim custody pendente

lite and pass appropriate orders at the earliest.

Since the Family Court had not decided the custody of

the children, we find no reason to retain this

original petition. Appropriate orders shall be passed

by the Family Court within ten days. Till further

decision is taken in the matter, the custody will be

with the mother subject to the right of the father to

have visitorial rights at the residence of the mother

as ordered by this Court on 17.02.2022.

2. The learned counsel for the father would

submit that the children were in the custody of the

father except the eldest child till this Court passed

an order and the father should be restored with the

custody of the three children. We are of the view

that the interim custody can be decided by the Family

Court untrammeled by the interim order passed by this

Court earlier. The interim arrangement will not

affect the rights of the parties to agitate the claim

for custody in appropriate manner before the Family

Court.

The original petition is disposed of as above.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

SOPHY THOMAS JUDGE ln

APPENDIX OF OP (FC) 52/2022

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE FIRST INFORMATION REPORT BEARING NO.1373/2021 BEFORE THE PONKUNNAM POLICE.

EXHIBIT P2 A TRUE COPY OF THE PETITION BEARING O.P.NO.762/.2021 BEFORE THE FAMILY COURT, PATHANAMTHITTA PREFERRED BY THE RESPONDENT.

EXHIBIT P3 A TRUE COPY OF THE OBJECTION IN THE ORIGINAL PETITION BEARING OP NO.762/2021 BEFORE THE FAMILY COURT, PATHANAMTHITTA SUBMITTED BY PETITIONER'S MOTHER.

EXHIBIT P4 A TRUE COPY OF THE PETITION BEARING OP NO.772/2021 BEFORE THE FAMILY COURT, PALA PREFERRED BY THE PETITIONER. EXHIBIT P5 A TRUE COPY OF THE INTERLOCUTORY APPLICATION BEARING IA NO.2/2021 IN OP NO.772/2021 BEFORE THE FAMILY COURT, PALA PREFERRED BY THE PETITIONER. EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 22/12/2021 IN IA NO. 2/2021 IN OP NO.772/2021 BEFORE THE FAMILY COURT, PALA.