Xxxxxx vs Xxxxxx
2023 Latest Caselaw 4401 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                              &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945
                  OP (FC) NO. 114 OF 2023
 AGAINST THE ORDER DATED 07.02.2023 IN I.A.NO.13 OF 2022 IN
 I.A.NO.2 OF 2022 IN O.P.NO.976 OF 2022 ON THE FILE OF THE
                   FAMILY COURT, PALAKKAD
PETITIONER/PETITIONER/PETITIONER:

         XXXXXXXXXX
         XXXXXXXXXX XXXXXXXXXX
         BY ADVS.
         SABU GEORGE
         P.B.KRISHNAN
         P.B.SUBRAMANYAN


RESPONDENT/RESPONDENT/RESPONDENT:

         XXXXXXXXXX
         XXXXXXXXXX XXXXXXXXXX
         BY ADV.
         R.HARISHANKAR


         SRI.N.N. SUGUNAPALAN (SR) FOR RESPONDENT


     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                 2
O.P.(FC) No.114 of 2023



                          JUDGMENT

P.G.Ajithkumar, J.

The petitioner in O.P.No.976 of 2022 on the file of the

Family Court, Palakkad has filed this original petition under

Article 227 of the Constitution of India. She filed I.A.No.13 of

2022 in O.P.No.976 of 2022 seeking a modification to the

order regarding interim custody of her elder daughter aged 5

years. The Family Court, dismissed that application as per

Ext.P6. The petitioner seeks to set aside that order.

2. On 08.03.2023, notice on admission was directed

to be served on the respondents. An interim order permitting

the petitioner to retain the custody of the child without

allowing any visitation right to the respondent was passed for

a period of two weeks. Interim order was extended for a

further period of two months.

3. Heard the learned counsel appearing for the

petitioner and the learned Senior Counsel appeared for the

respondent.

4. O.P No.976 of 2022 was filed by the petitioner

O.P.(FC) No.114 of 2023

before the Family Court, Palakkad. She filed I.A. No.2 of 2022

in that original petition. The Family Court as per order dated

dated 01.11.2022 issued the following directions regarding

interim custody of the child.

"1. The respondent/father is directed to hand over the custody of the minor female child named Ivana Jithu to the petitioner/mother till the disposal of the main petition;

2. The respondent shall produce the minor female child named Ivana Jithu before the C.M.O/in-charge of this court at 10.30 a.m on 05.11.2022 and hand over the child to the C.M.O/in-charge;

3. The C.M.O/in-charge shall take custody of the said minor child and hand over custody to the petitioner/mother forthwith;

4. The petitioner is allowed to have the interaction with the minor children (both) on all 1 st and 4th Saturdays from 2.30 am to 4.30 p.m till the disposal of the main petition;

5. The petitioner/mother is hereby directed to produce the children before the C.M.O of this court on all 1st and 4th Saturdays at 2.30 p.m and shall hand over the custody of the children to the respondent/ father upto 4.30 p.m;

6. The respondent shall handover the custody of the minor children at 4.30 p.m to the petitioner in the

O.P.(FC) No.114 of 2023

presence of the C.M.O/in-charge;

7. The respondent/father shall not cause any annoyance or inconvenience to the children remaining in his custody;

8. The respondent/father shall pay Rs.750/- to the petitioner/mother towards the travelling expense on all the interaction days;

9. The respondent/father is also permitted to interact with the minor children through video call on all Mondays, Thursdays and Sundays from 7 p.m to 7.30 make necessary arrangements for the same in time;

10. It is made clear that the 2nd child was born only on 05.07.2022. That means, 2nd child is now aged only 04 months old. So, the respondent/father shall take utmost care and give such a consideration to the said child during the course of his interaction."

5. Respondent filed O.P.(FC)No.630 of 2022

challenging the said order. This court disposed of O.P.No.630

of 2022 on 16.11.2022. Order of the Family Court dated

01.11.2022 was modified as follows:

"i) The petitioner shall handover custody of the child to the respondent at 10.30 a.m. on 18.11.2022 in the presence of the Chief Ministerial Officer of the Family Court, Palakkad;

O.P.(FC) No.114 of 2023

ii) The petitioner-father will be given interim custody of the child from 11.00 a.m. on the first and fourth Saturdays till 4.00 p.m. on the following Sunday every month;

iii) The petitioner will get and give back the child for the weekend custody as aforesaid from the house of the respondent;

iv) The petitioner and the respondent are prohibited from taking the child outside Kerala without permission of the Family Court, Palakkad;

v) The respondent shall admit the child in a standard educational institution near her present residence at Palakkad; and

vi) The parties may approach the Family Court, Palakkad, if any further modification in the matter of interim custody is required, after two months.

6. In terms of the said direction, custody of the child

was given to the respondent on 26.11.2022 and again on

03.12.2022. The petitioner filed I.A.No.13 of 2022 before the

Family Court, Palakkad for cancelling the right of visitation of

the respondent. The allegation is that the respondent sexually

abused the child when he was in custody of the child. A crime

was seen registered with regard to the said allegation. The

O.P.(FC) No.114 of 2023

petitioner would contend that the child had to undergo

treatment in connection with the ill treatment and sexual

abusement by the respondent. In the wake of those

developments, the petitioner filed I.A.No.13 of 2022.

7. The Family Court took the view that clause no.(vi)

in the operative part of Ext.P1 judgment enables only

modifications and no deletion, removal or cancellation of any

stipulation in Ext.P1 judgment regarding custody of the child.

Resultantly the Family Court dismissed I.A.No.13 of 2022.

8. The learned Senior Counsel appeared for the

respondent would submit that a scrutiny of the materials on

record reveals falsity of the allegations levelled against the

respondents. The learned Senior Counsel further would submit

that mere registration of a crime under the provisions of the

POCSO Act against the father is not a sufficient reason to

deny him custody of the child. Our attention is invited to the

decision of this court in Suhara and others v. Muhammed

Jaleel [2019 (2) KHC 596].

9. In Rosy Jacob v. Jacob A. Chakramakkal

O.P.(FC) No.114 of 2023

[(1973) 1 SCC 840] the Apex Court 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. Orders relating

to custody of wards even when based on consent are liable to

be varied by the Court if the welfare of the wards demands

variation.

10. In the light of the said proposition of law, a custody

order is liable to be modified if there is change in the

circumstances necessitating modification or alteration in the

order regarding custody. In this case, the allegations are such

that, in order to take a decision on the request for change in

the custody order, fresh materials are required to be

considered. It is for the Family Court to consider those

matters and take an appropriate decision. We do not therefore

venture to consider the veracity of the allegations levelled

O.P.(FC) No.114 of 2023

against the respondent. We clarify that the Family Court,

Palakkad is free to consider the materials placed on record

and can delete, remove or cancel any of the clauses governing

the custody of the child in Ext.P1 judgment, if required to

ensure welfare of the child.

Therefore we allow this original petition and set aside

Ext.P6. Family Court, Palakkad is directed to consider afresh

I.A.No.13 of 2022 in O.P.No.976 of 2022 and decide it

accordance with law.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE PV