Kerala High Court
Divya Rajan vs Bineesh P.B on 17 March, 2022
IN THE HIGH COURT 0F KERALA AT ERl\IAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, "E 17TH DAY 01= MARCH 2022 / 26TH PHALGUNA, 1943
0P /FCI NO. 492 0F: 2021
AeAINST THE ORDER/]uDGMENT IN Op Gw 206®/2®2® OF I:AMILy
COURT, ERNAKU LAM
PETITIONER :
DIVYA RAJAN, AGED 35 YEARS, W/0. BINEESH P.B., THUMPA
VILAYIL HOUSE, AKDUVINAL P.0., VALLIKUNNAM MURI,
VALLIKUNNAM VILLAGE, ALAPPUZHA DISTRICT, NOW RESIDING
AT AMBADIYIL HOUSE, PAVUMPA P.0. , KARUNAGAPALLY TALUK,
KOLLAM DISTRICT, PIN-690 574.
BY ADVS.
P . HARI DAS
P . C . SHIJIN
RISHIKESH HARIDAS
BIJU HARIHARAN
RESPONDENTS :
BINEESH P.B. AGED 39 YEARS, S/0, BABY, RESIDING AT
PISHARIKATTIL HOUSE, MANAKUNNAM VILLAGE, P00THOTTA
P.0., ERNAKULAM DISTRICT, PIN-682 307 (NOW RESIDING IN
KUWAIT) .
BABY, AGED 66 YEARS, FATHERS NAME NOT KNOWN T0 THE
PETITIONER, RESIDING AT PISHARIKATTIL HOUSE, MANAKUNNAM
VILLAGE, P00THOTTA P.0., ERNAKULAM DISTRICT, PIN-682
NIRMALA, AGED 60 YEARS, W/0. BABY, RESIDING AT
PISHARIKATTIL HOUSE, MANAKUNNAM VILLAGE, P00THOTTA
P.0., ERNAKULAM DISTRICT, PIN-682 307.
BINU, AGED 37 YEARS, S/0. BABU, RESIDING AT
PISHARIKATTIL HOUSE., MANAKUNNAM VILLAGE, P00THOTTA
P.0., ERNAKULAM DISTRICT, PIN-682 307.
BABY DAKSHINA, AGED 6 YEARS, D/0. BINEESH P.B AND DIWA
RAJAN, RESIDING AT PISHARIKATTIL HOUSE, MANAKUNNAM
OP ffi NO. 492 0F 2oZI
Z
VILLAGE, P00THOTTA P,O. , ERNAKULAM DISTRICT, PIN-682
307. ( NOW UNDER THE CUSTODY 0F RESPONDENTS 2 TO 4) .
DEKSHITH, AGED 4 YEARS, S/0. BINEESH P.B. AND DIVYA
RAJAN, RESIDING AT PISHARIKATTIL HOUSE, MANAKUNNAM
VILLAGE, P00THOTTA P.0., ERNAKULAM DISTRICT, PIN-682
307. . (NOW UNDER THE CUSTODY 0F RESPONDENTS 2 TO 4),
ADDL. THE COMMISSIONER 0F POLICE KOCHI, OFFICE 0F THE
COMMISSIONER 0F POLICE, ABDUL KALAM MARG, MARINE DRIVE,
ERNAKULAM, PIN-682011
ADDL. R7 IMPLEADED AS PER THE ORDER DATED 22/12/21 IN
IA 1/2021 IN 0P(FC) 492/2021
ADDL. THE STATION HOUSE OFFICER, UDAYAMPER00R POLICE
STATION, SH-15, UDAYAMPER00R, KANDANAD, ERNAKULAM, PIN-
682307 '
ADDL. R8 IMPLEADED AS PER THE ORDER DATED 22/12/21 IN
IA 1/2021 IN 0P(FC) 492/2021
ADDL R9. THE REGIONAL PASSPORT OFFICER, REGIONAL
PASSPORT OFFICER, TRIVANDRUM, REGIONAL PASSPORT OFFICE,
SNSM BUILDING, 3,4TH FLOOR, KAITHAMUKKU PETTA RD.,
THIRUVANANTHAPURAM, KERALA 695024.
ADDL. R9 IMPLEADED AS PER THE ORDER DATED 22/12/21 IN
IA 4/2021 IN 0P(FC) 492/2021.
10 THE AUTHORIZED OFFICER, PASSPORT SEVA KENDRAN, KOLLAM
PASSPORT SEVA KENDRAM, KOLLAM 74 BUILDING # MC
VIII/1578/715 ASN TRUST COMPLEX, NEAR KOLLAM MUNICIPAL
CORPORATION OFFICE, VELLAPPALLY NAGAR, KOLLAM, KERALA
691320 I
ADDL. R10 IMPLEADED AS PER THE ORDER DATED 22/12/21 IN
IA 4/2021 IN 0P(FC) 492/2021
BY ADVS.
T.U,SUJITH KUMAR
SRI.SUVIN R.MENON, CGC
THIS 0P (FAMILY COURT) HAVING BEEN FINALLY HEARD 0N
17.03.2022, THE COURT 0N THE SAME DAY DELIVERED THE FOLLOWING:
OP qp NO. 492 0F 2021
UDGMENT
A. Arfulhamed Musfaque. I
This original petition was filed cliallenging art order
relating to custody. The petitioner-mother and the lst
respondent-father are nor residents of India and currently
employed in Kuwait. The marital diaputes between them are
pending before the family Court, chavara and the Falnily Court,
Ernakulan. The parfes resolved their disprfes and filed a joint
petition for divorce involdrig Section 1 3 8 of the Hinds Marriage
Act, 1955. The parties also have entered into ari agreement
regarding custody of the children born in their wedlock There
are disputes regarding the mainteriarice. In regard to the
quariftm of maintenance payable to the children I;y the lst
respondent-father, the parties have agreed for resolution of the
disputes.
2. The petitioner appeared though online. She has been
identified by the learried coimsel appearing for her. The lst
respondent-father is present before this Court. We interacted
OP qp NO. 492 0F 20Z1
with both parties. They are firm in their decision to dissolve
their marriage. The divorce petitions filed by the petitioner
before the Family Cotut, Chavara and by the lst respondent-
father before the Family Court, Ernakulam are pending. We are
of the view that the statutory cooling off period can be waived
` since the parties are living separately for the last more than
several years and the petitioner-wife filed the divorce petition in
the year 2019.
3. We are also of the view that the marriage can be
dissolved based on the mutual consent of the parties. In regard
to the custody of the children, the petitioner-mother is appointed
as a natural guardiari and permanent custodian of the children
namely, Dakshina and Dekshith. It is agreed before this Court by
both parties that the children will be taken to kuwait by the
petitioner-mother, the natural guardian and permarient
custodian. The lst respondent-father will have the custody of the
children on every Friday between 10 am and 5 pin. He is also
permitted to contact the children whenever he wishes through
Op qp NO. 492 Or 2Ozi
video platform or over phone.
4. The children are now at the parental house of the lst
respondent. If the children are taken to Kuwait, the lst
respondent-father shall pay a sum of Rs.5000/-(Rupees Fife
Thousand only) each to the children as maintenance. However,
if the children remains in India, the lot respondent-father is
bourid to take care of the children. We record the terms arid
conditions agreed by the parties in the 1 3 8 application and that
will form part of the judgment. In the light of settlement above,
we dispose of this original petition with the following orders:
I. We direct Family Court, Chavara to record the
dissolution of marriage betveen the petitioner and the lst
respondent by mutual consent without insisting further
appearance of the parties in O.P (Div) No.500 of 2019 within a
period of two weeks.
11. O.P (G&W) No.2060 of 2020 before the Family court,
Emakulam shall be disposed of recording the settlement of the
parties before this Court in regard to custody of the children.
OP ffl NO. 49z or 2021
Ill. We also direct the Family Court, Emakulam to 'close
O.P (G&W) No.1604 of 2021 in the light of settlement arrived at
between the parties before this Court.
IV. The petitioner is permitted to process the VISA as a
sole guardian of the children and the petitioner alone will be
responsible for taking the children to Kuwait.
V. The entire records including school records, Aadhaar
cards etc., shall be handed over by the respondents to the
petitioner-mother at the time in which the children are taken to
Kuwait.
AMUIIAArmMUsmQIJE
JuREE
Sd/-
sour"ous
JumE
PR
OP ffl NO. 492 or 2ozi
APPENDIX 0F 0P (Fcl 492/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY 0F THE 0,P.(G&W) NO.2®60/2020
BEFORE THE FAMILY COURT, ERNAKULAM,
ORIGINALLY FILED BEFORE THE FAMILY COURT,
CHAVARA.
Exhibit P2 TRUE COPY 0F THE I.A.NO.4519 0F 2021 IN
0,P(G&W) NO.2060/2020 0F FAMILY COURT,
ERNAKULAM DATED 5.10.2021.
Exhibit P3 TRUE COPY 0F TRANSCRIBED COPY 0F THE ORDER IN
IA NO,4518/2021 IN 0.P.(G&W) NO.2060/2020 0F
FAMILY COURT ERNAKULAM DATED 6.10.2021.
Exhibit P4 TRUE COPY 0F THE POWER 0F ATTORNEY DATED
21. 06 , 2019 .
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RE THE HONORABLE HIGH COURT OF KERALA AT
EENAIUI,AM
I.A.No. j of 2022
o.p.(F.c.) Nor.¥92of 2o21 A
Divya Rajan & Other : Applicants/ Petitioner&
1st responclenl-
Vs.
Bineesh.P.B & others : Respondents/Re`spondent 2-9
APPLICATH®N FILEH) UNDER SE}CTION 13 a OF THB
RIHNDU MARREAGE ACT 1955
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BEFORE THE H©N®RABELE HIGH COURT 0F KERAELA AT:
ERRI%ULAM
I.A.No. ®f 2022
0.P.(F.C.) N©.492 of 2021
APPELHCANTS PETHTHONER & 1ST RBSPONDENT:
1, Divya Rajan, aged 35 years, W/o Bincesh.P.B, Thumpa
Vilayil House, Kaduvinal.P.O, Vallikunnam Muri, Vallikunnam
Village, Alappuzha District, Now residing at Ambadiyil liouse,
Pavumpa.P.O, Karuiiagapally Taluk, Kollam District, Pin:
690574 represented by Iler mother- and power of attorTiey
holcler Sumangala Devarajan, aged 57 years, W/o Devai-ajan,
resiclent of Sheeja Bhavanam, Maiia|)pally North.P.O,
Kari]nagappally, Kollam District, Pin: 690574, now rest.ding at
Ambadi.vi House, Pavumba.P.O, Manappally, Karunagappally,
Kollam District, Pin: 690574.
2, J3ineesh.P.B, aged 39 years, S/o Baby, residing at
Pisharikattil House,Manakunnam Vil]agc, Poothotta.P.O,
Ei-nakulam District, Pin: 682307. (Whatsapp No:
0096567798520,email:baii`'\/'.1~jiiiceshL'J\i;niail.{``om)
\_.
omdemts ®ndents 2 to 10:-
1. Baby, aged about 66 years, father's name not known to
the petitioner, residing at Pisliarikattil House,
Ma_nakunnam Village, Poothotta.P.O, Eiiiakulam District,
Pin: 682307. ( Whats app No: 9947947846)
2. Nirmala, aged about 60 years, W/o 13aby, residing at
Pisharikattil House, Manakunnam Village, Poothotta.P.O,
Emakulam District, Pin: 682307. ( Whats app No:
9947947846)
3.Binu, aged about 37 years, S/o Baby, residing at
Pisharikattil House, Manakunnam Village, Poothotta.P.O,
~.S_`
Ernakulam District, Pin: 682307. ( Wh.ats app No:
9947947846, email bl98 mail.com
4. Baby Dakshina, D/o Bineesh.P.B and Divya Rajan, aged
6 years, residing at Pisharikattil House,Manakunnam
Village, Poothotta.P.O, `Ernakulam District, Pin: 682307. (
Now under the custody of respondents 2 to 4)
5. Baby Dekshith, S/o Bineesh.P.B and Dii7ya Rajan, aged 4
years, residing at Pisharikattil House,Manakunnam
Village, Poothotta.P.O, Ernakulam District, Pin: 682307. (
Now under the custody of respondents` 2 to 4)
6.The Commissioner of Police, Kochi, Office of the
Commissioner of Police, .Abdul Kalam Marg, Marine
Drive, Emakulam, Pin- 682011.
7. The Station .House Officer, Udayamperoor Police Station,
SH-15, Udayamperoor, Kandanad, Ernakulam, Pin-
682307.
8. The Regional Passport Officer, Regional Passport Officer,
Trivandrum, Regional Passport Office,. SNSM Building,
3 , 4th Floor, Kaithamukku Petta Rd ,
Thiruvananthapuram, Kerala 695024.
9. The authorized officer, Passport Seva Kendram, Kollam
74 Building # MC VIlr / 1578 / 715 A S.N Trust
Complex, Near Kollam Municipal Corporation Office,
Vellappally Nagar, Kollam, Kerala 691320
APPLICATION FILED UNDER SECTION 13 8 OF THE
HINDU MARRIAGE ACT 1955
1. It is submitted that applicants are wife and
husband. Marriage between the lst applicant and the 2nd
applicant was solemnised on 10.04.2011 at Anupana
Auditorium, Pavumba. Two children were born in the said
wedlock namely Dakshina on 07.07.2015 and Dekshith on
EE
03.02.2017. Thereafter applicants are living separately
from 13.06.2019 onwards.
2. It is submitted tha.t lst applicant had fli ed OP (Div)
No.500/2019 for divorce and O.P (G&W) No.509/2019 for
appointing hei- as guardian of the children and their
permanent` custody before the Family Court, Cha.vai-a. Due
to la.ck of j.urisdiction, O.P(G&W) .No.509/2019 was
ti-ansferred to the Family Court, Ernafulam and r.e-
numbered as O.P.(G&W) No.2060/2020.
3. It is submitted that 2nd applicant filed
O.P.No.1579/2019 befoi-e the Family Court, Ernakulam and
obtained an expczrfe decree of restitution of conjugal rights
j=--_
on 27.04.2020. He also-filed O.P.No.1604/2021 before the
_.r<
Family Coil.rt, Ernakulam for divo`i:ce.
4. It is submittea``that now the applicants have been
living separately for a period more than one year and that
they ha.ve not been able to live together and tha.t_±Lhey hay_e
mutually agreed that the marriage should be dissolved.
5. It is agi-eed by the applicants that permanent
custody of the children shall be with the lst applicant and
-F
she may be appointed as guardian of them. 2nd applicant is
having no objection in taking the children abroad by the lsl
applicant.
6. It also agreed between the applicants that 2ncl
applicant shall give monthly maintenance to the children as
fixed by this honourable court after hearing both the
parties.
7. It is agreed by the parties that they shall have
liberty to approach appropriate forum for their proprietary
u
and monetary claims against each other.
Under such circumstances, this Honourable
Court may be pleased to pass an order dissolving the
marriage between the applicants solemnised at Anupama
Auclitorium, Pavumba on 10.04.2011, in the best interest of
justice.
`-.
•,_!iilr;;-S
B"lox
2"tl Applicant
Suj ithkumar T . U .
Counsel for the 2ntlApplicant/ lst Respt)ndent
