Kerala High Court
Manoj M.V vs Anju C.B on 7 October, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
O.P.(FC) NO. 469 OF 2022
AGAINST THE ORDER DATED 18.07.2022 IN I.A.NO.1 OF 2022 IN
O.P.NO.1686 OF 2022 OF THE FAMILY COURT,THRISSUR
PETITIONERS:
1 MANOJ M.V.
AGED 37 YEARS,
MADATHIL MANOCHITHRA VEETTIL,
KALLELIBHAGAM VILLAGE,
IDAKKULANGARAMURI, IDAKKULANGARA POST,
KARUNAGAPPALLY TALUK, PIN - 690523.
2 MINOR ANAMIKA M.NAIR,
AGED 3 YEARS AND 7 MONTHS, REP.BY FATHER &
GARDIAN - 1ST PETITIONER.
BY ADVS.
K.M.MOHAMMED YUSUFF
K.P.MAJEED
T.H.ABDUL AZEEZ
RESPONDENT:
ANJU C.B.
AGED 28 YEARS
CHEMBALA VEETTIL, AYYANTHOLE POST & VILLAGE,
THIRUVONAM CORNER, PUTHOORKKARA DESOM, THRISSUR
TALUK, PIN - 680003.
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL
HEARING ON 07.10.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
O.P.(FC) No.469 of 2022
JUDGMENT
Ajithkumar, J.
The petitioner has filed O.P.No.1686 of 2022 before the
Family Court, Thrissur, seeking permanent custody of his daughter
Anamika M.Nair, who is aged 4 years. The respondent is the
mother. The petitioner also filed I.A.No.1 of 2022 seeking interim
custody of the child during the pendency of O.P.No.1686 of 2022.
That interlocutory application was dismissed by the Family Court,
Thrissur, as per the order dated 18.07.2022. Challenging the said
order, the petitioner has filed this Original Petition under Article 227
of the Constitution of India.
2. On 22.08.2022, this Original Petition was admitted to
file and notice was directed to be served on the respondent.
Although notice was served, the respondent did not choose to
appear before this Court.
3. Heard the learned counsel appearing for the 1 st
petitioner. The 2nd petitioner is the minor.
4. O.P.No.2183 of 2020 was filed by the respondent before
the Family Court, Thrissur, claiming a decree of dissolution of her
marriage with the petitioner. She has filed I.A.No.1 of 2020 in the
O.P. claiming interim custody of the minor child. As per the order in
O.P.(FC) No.469 of 2022
that I.A., the Family Court gave interim custody of the child to the
respondent. The petitioner-father filed O.P.(FC) No.410 of 2021
before this Court challenging the said order. This Court disposed of
O.P.(FC) No.410 of 2021 by judgment dated 06.09.2021 confirming
the order of the Family Court, Thrissur; however, allowing the
petitioner to have interim custody of the child on every 2nd and 4th
Friday till 11.00 a.m. on the ensuing Monday. It is seen that the
petitioner approached the Apex Court challenging the said order,
but the Special Leave Petition filed by him was dismissed. It is seen
from the impugned order that the child was then in the custody of
the petitioner-father, but he did not obey the order and hand over
the custody to the respondent-mother, resulting in initiating
coercive steps and even his detention in civil prison. Custody of the
child was handed over to the respondent on 23.11.2021. It is in the
aforesaid background, the petitioner has filed O.P.No.1686 of 2022
before the Family Court, Thrissur and I.A.No.1 of 2022 seeking
interim custody of the child.
5. It is trite that every custody order of a child is
temporary in nature. A three-Judge Bench of the Apex Court in
Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC
O.P.(FC) No.469 of 2022
840] held that all orders relating to the custody of the minor
wards from their very nature must be considered to be
temporary orders made in the existing circumstances. With
the changed conditions and circumstances, including the
passage of time, the Court is entitled to vary such orders if
such variation is considered to be in the interest of the welfare
of the wards.
6. Therefore, it cannot be said that the petitioner has no
right to file a petition for getting custody of the child, but of course,
there should be change in circumstances to alter or modify the
order of interim custody already in force. Only circumstance
pointed out by the petitioner is that he took admission for the child
Anamika M.Nair in a school at Karunagappally, and therefore, he
has to be given custody of the child. Ext.A5 would show that the
petitioner obtained admission for his child in Amrita Vidyalayam,
Karunagappally. On the other hand, the respondent produced
Ext.B3 showing that the child was admitted in Saraswathy Vidya
Nikethan, Thrissur. Ext.B5 is a copy of the judgment in O.P.(FC)
No.410 of 2021 and Ext.B6 is the order of the Apex Court
dismissing S.L.P. filed by the petitioner.
O.P.(FC) No.469 of 2022
7. Taking all the aforesaid facts and circumstances into
account, there is absolutely no reason or right for the petitioner to
claim interim custody of the female child aged only 3 years, who is
now with the mother as per the order of this Court, which stands
confirmed by the Apex Court. Therefore, we find no reason to
interfere with Ext.P1 order dated 18.07.2022 of the Family Court.
This Original Petition is accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
O.P.(FC) No.469 of 2022
APPENDIX OF OP (FC) 469/2022
PETITIONER EXHIBITS
EXHIBIT P1 THE PHOTOSTAT COPY OF THE ORDER
DATED 18/07/2022 IN I. A. NO. 1/2022
IN O.P. NO. 1686/2022 OF THE FAMILY
COURT, THRISSUR
EXHIBIT P2 SERIES COPIES OF THE MEDICAL PRESCRIPTIONS,
LAB REPORT, CASH BILL AND PHARMACY
BILLS ISSUED FOR THE PURCHASE OF
MEDICINE TO THE 1 ST PETITIONER IN
THE NAME OF THE MINOR CHILD.
EXHIBIT P3 SERIES COPIES OF FEE RECEIPTS ISSUED BY
AMRITA VIDYALAYAM, KARUNAGAPPALLY IN
THE NAME OF THE MINOR CHILD.
EXHIBIT P4 SERIES COPIES OF THE PHOTOGRAPHS EIGHT IN
NUMBERS SHOWING THE CLASSROOMS,
ACTIVITY ROOM AND DINING HALL OF THE
AMRITA VIDYALAYAM, KARUNAGAPPALLY
EXHIBIT P5 SERIES COPIES OF THE PHOTOGRAPHS FOUR IN
NUMBERS SHOWING THE ACTIVITY ROOM
AND DINING ROOM OF THE TGSM
SARASWATHY VIDYANIKETHAN, AYYANTHOLE
