Kerala High Court
Libi M.B vs Subin on 13 January, 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 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
OP (FC) NO. 511 OF 2021
AGAINST THE ORDER/JUDGMENT IN OP 628/2014 OF FAMILY COURT,
IRINJALAKUDA
PETITIONER/RESPONDENT:
LIBI M.B
AGED 36 YEARS
W/O. MUPPARATHI VEETTIL BABU, MOORKKANAD DESOM,
PORATHISSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR
DISTRICT-680 711 -
MINOR
KRISHNATHEERTH, REPRESENTED BY THE PETITIONER AGED
9, S/O. PETITIONER AND 1ST RESPONDENT, NOW RESIDING
WITH THE PETITIONER, MUPPARATHI VEETTIL, MOORKKANAD
DESOM, PORATHISSERY VILLAGE, MUKUNDAPURAM TALUK,
THRISSUR DISTRICT-680 711.
BY ADVS.
M.R.VENUGOPAL
DHANYA P.ASHOKAN
RESPONDENTS/PETITIONERS:
1 SUBIN
AGED 39 YEARS
S/O. SREEHARI VEETTIL RISHINATH, KODAPPALLIPARAMBU
DESOM, KOTTULLY VILLAGE, KOZHIKODE TALUK, REP BY
POWER OF ATTORNEY HOLDER, KOTHER, DAKSHAYANAI AGED
68, W/O. SHREEHARI VEETTIL RISHINATH,
KODAPPALLIPARAMBU DESOM,P.O.KOTTULLY, KOTTULLY
VILLAGE, KOZHIKODE TALUK,PIN-673016
O.P. (FC) No.511 of 2021 2
2 RISHINATH
AGED 76 YEARS
SREEHARI HOUSE, KODAPPALLIPARAMBU
DESOM,P.O.KOTTULLY, KOTTULLY VILLAGE, KOZHIKODE
TALUK,PIN-673 016
3 DAKSHAYANI,
AGED 68 YEARS
W/O. SHREEHARI VEETTIL, RISHINATH,
KODAPPALLIPARAMBU DESOM, P.O.KOTTULY, KOTTULLY
VILLAGE, KOZHIKODE TALUK,PIN-673 016
BY ADVS.
ANTO THOMAS
P.S.SYAMKUTTAN
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
13.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P. (FC) No.511 of 2021 3
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
------------------------------------
O.P. (FC) No.511 of 2021
------------------------------------
Dated this the 13th day of January, 2022
JUDGMENT
A.Muhamed Mustaque, J.
The petitioner is the mother of child namely, Krishnatheerth,
presently studying in 4th standard in Marthoma Public School,
Ernakulam. The 1st respondent is the father of the child. The
original petition was filed as O.P No.628 of 2014 before the Family
Court, Irinjalakuda. In the said original petition, the parties
entered into a compromise, resolving all disputes including custody
of the child. The Family Court disposed the O.P on the basis of
settlement, and custody was given to the petitioner-mother.
2. The respondents approached the Family Court as per
I.A No.2 of 2020 in O.P No.628 of 2014 praying for a direction to
the petitioner to get TC from the present school and to admit the
child in Rajagiri Public School, Kakkanad, Ernakulam. The said
petition has been allowed by the Family Court as per the impugned
order, produced as Ext.P5. The reasoning of the Family court is
found a place in paragraph 10 of the impugned order.
3. According to the petitioner, Ext.P5 order is ex facie illegal,
as the Family Court had not found anything related to the welfare
of the child. It is also submitted that, in the absence of any finding
that the education of the child has been adversely affected on
account of the fact that the child is studying in Marthoma Public
School, the Family Court could not have made a comparative
assessment with some other school to direct the petitioner to
admit the child in that school.
4. On the other hand, according to the learned counsel for
the respondents, as per the settlement, it was agreed by both
parties to choose most suitable school for the child and therefore,
reservation has been made in the agreement itself to choose best
school for the child.
5. The present school is very close to Infopark, Ernakulam
where the mother is working. The point that has to be considered
in such circumstances is whether the parent who is having custody
had compromised the welfare of the child or not.
6. The conducive environment of the child to grow has not
been compromised by the mother. The impression one may have
about the infrastructure and other facilities is not a factor to be
reckoned in such circumstances. The child who may study in a
school having lesser facilities may have more exposure in life than
the child who may study in a school where there are more
facilities. Learning skill of the child cannot be assessed merely in
terms of infrastructure or other facilities. Learning is a process by
which the child moulds himself/herself as a better person to fit into
the circumstances of life. The Family Court in fact carried with the
notion the prospect of higher education would be a criteria to
decide the welfare of the child as the Rajagiri School is having
facilities for higher education.
7. The parent who is having custody has right to choose the
best school for the child. The custody of the child is with the
mother. If the mother had not compromised with the welfare of
the child in regard to education, it is not for the Family Court to
choose one school for other merely on a notion of facilities or
prospect of higher education. The court should refrain from
adjudicating such matters with notion of authority to choose the
best school for the child. The court is a place where it decides on
legal rights and obligations of the parties. The court shall not
enter into such arena of choice, as it will denude the right of the
parent who has right to decide on the welfare of the child.
In the light of the above, we have no hesitation to find that
the Family Court committed a jurisdictional error in entering into a
choice that could have been legally exercised by the mother who is
having custody of the child. We, therefore, set aside the impugned
order. No costs.
This Original petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
smp
APPENDIX OF OP (FC) 511/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF COMPROMISE DATED 24.01.2018
FILED BY THE PARTIES IN OP NO.627/2014
Exhibit P2 TRUE COPY OF THE JUDGMENT 22.03.2019 IN
OP NO.628/2014
Exhibit P3 TRUE COPY OF IA NO.2/20 DATED 03.06.2020
IN OP 628/2014 ON THE FILE OF THE FAMILY
COURT, IRINJALAKUDA
Exhibit P4 TRUE COPY OF COUNTER DATED 06.07.2020
FILED BY THE PETITIONER IN IA NO.2/2020
IN OP NO.628/2014
Exhibit P5 TRUE COPY OF ORDER DATED 28.09.2021 IN IA
NO.2/2020 IN OP 628/2014 ON THE FILE OF
THE FAMILY COURT, IRINJALAKUDA
RESPONDENTS' EXHIBITS: NIL.
True Copy
P.S to Judge
smp
