Kerala High Court
Chithra S vs Director General Of Police on 12 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
Wednesday, the 12th day of April 2023 / 22nd Chaithra, 1945
IA.NO.1/2023 IN WP(CRL.) NO. 67 OF 2022(S)
PETITIONER:
CHITHRA S., AGED 32, D/O. KUTTAPPAN NAIR,
SURESH BHAVAN, POYPPARA, MANCHAMCODE P.O.,
THIRUVANANTHAPURAM-695 125.
RESPONDENTS:
1. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS,
VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.
2. DEPUTY SUPERINTENDENT OF POLICE, OFFICE OF DEPUTY
SUPERINTENDENT OF POLICE, KATTAKKADA, KATTAKKADA P.O.,
THIRUVANANTHAPURAM-695 572.
3. STATION HOUSE OFFICER, ARYANCODE POLICE STATION, ARYANCODE
P.O., THIRUVANANTHAPURAM-695 124.
4. NANDAKUMAR, S/O.GOVINDAN NAMBIAR, PALOTTU VEEDU, PALLIVAL,
PANNIYOOR, THALIPARAMBA, KANNUR, PIN-670 141.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to modify condition
Nos.2 and 3 in judgment dated 07/02/2022 disposed WP(Crl) No.67/2022 so
as to enable the petitioner to whom the permanent custody of the child
has been given to take the child along with her to her place of
employment in U.A.E. and to give schooling to the child in U.A.E.
subject to such conditions imposed by this Hon'ble Court
This Application coming on for orders upon perusing the
application and the affidavit filed in support thereof, and this Court's
judgment dated 07/02/2022 & order dated 04/04/2023 and upon hearing the
arguments of M/S. R.T.PRADEEP, M.BINDUDAS & K.C.HARISH, Advocates for
the petitioner in IA/WP(CRL),SRI.V.S.SREEJITH, PUBLIC PROSECUTOR for R1
to R3 in IA/WP(Crl) and of SRI.M.R. SARIN PANICKER, Advocate for R4 in
IA/WP(Crl), the court passed the following:
P.T.O.
ALEXANDER THOMAS & C. JAYACHANDRAN, JJ.
========================================
I. A. No. 1 of 2023
in
W. P. (Crl.) No. 67 of 2022
========================================
Dated this the 12th day of April, 2023
ORDER
This is an application for modification of condition
Nos. 2 & 3 laid down in para 5 of this Court's judgment dated
7.2.2022 rendered in WP(Crl.) No. 67/2022.
2. Heard Sri.R.T.Pradeep, learned counsel appearing for
the applicant in the I.A./petitioner in the WP(Crl.), Sri.M.R.Sarin
Panicker, learned counsel appearing for R-4 in the I.A./R-4 in the
WP(Crl.) and Sri.V.S.Sreejith, learned Prosecutor appearing for
official respondents 1 to 3.
3. This Court, as per the judgment rendered on 7.2.2022
in WP(Crl.) No. 67/2022, has laid down the following conditions,
in para 5 of the said judgment, for regulating the custodial rights
in regard to the child born in the wedlock of the applicant (wife)
with R-4 (husband). Paras 5 & 6 of the said judgment in WP(Crl.)
No. 67/2022 read as follows:
I. A. No. 1 of 2023 in
W. P. (Crl.) No. 67 of 2022
..2..
"5. Considering the age of the child and the fact that he is not
yet attending a school
1. The mother the petitioner shall have permanent custody of the
child
2. For the time being the father shall have custody from the evening
of every 2nd Friday of a month to the afternoon of the next
Wednesday.
3. The child shall be picked up by the father from the house of the
mother, either on the evening of the 2 nd Friday or at any time after
that but with the condition that he shall be handed-over back to the
mother at her residence before 12 noon on the next Wednesday.
4. The parties shall be free to approach this Court with a petition to
modify the order passed; which liberty we grant only because the
parents were gracious enough to subject themselves to the orders
passed by this Court, without dragging the child into unnecessary
litigation and trauma before The Family Court.
6. We make it clear that the above order would regulate the
custody till the child is admitted to a regular school after which the
petitioner and 4th respondent would be entitled to move this Court for
modification; which liberty survives at any prior time also when there is
default caused by either of the parties."
4. In para 6, it has been made clear that the above
conditions will regulate the custody till the child is admitted to a
regular school, after which the petitioner and R-4 will be entitled
to move this Court for modification, etc. Now, it is submitted in the
above I.A. filed by the applicant (wife) that, she has secured a
gainful employment in UAE as Human Resource Assistant in a
private company and that, the company is providing family visa to
her and that, the child is only 6 years old and the presence of
mother is necessary and that, this Court may modify the terms and
I. A. No. 1 of 2023 in
W. P. (Crl.) No. 67 of 2022
..3..
conditions of the custodial rights as per the judgment, so that the
applicant is enabled to take the child to UAE where she has now
secured employment.
5. The plea is opposed by the counsel for R-4 on the
ground that the applicant has stated in the I.A., that, she will come
only once in a year to the country and that, she can give only 10
days' short term custody to the father, etc.
6. After hearing both sides, we note that the child is now
going to be admitted to Standard-I. Para 6 of the above judgment
has already made it clear that when the child is to be admitted to
school, the parties can seek modification of the order. Now, there
is a substantial change in circumstances inasmuch as not only the
child has to be admitted to Standard-I, but the mother has secured
gainful employment in UAE. The stand of the applicant (wife) as if
she can permit the husband the access to child only once in a year
and that too, for 10 days, is not sufficient. The ends of justice
would be met if the applicant (wife) gives short term custody of the
child to the husband (father of the child) atleast twice in a year
I. A. No. 1 of 2023 in
W. P. (Crl.) No. 67 of 2022
..4..
either in September/December as well as in Summer Holidays.
Further, it is ordered that R-4 (father) is permitted to interact with
the child, who is residing in UAE along with the mother, atleast
thrice in a week by audio and video calls, preferably through
Google Meet/BOTIM. We are told that Whatsapp Video call is not
permitted in UAE. Further, R-4 (father) is also permitted to visit
the child in UAE at any time of his choice, after prior intimation to
the applicant (wife) and thereupon, he shall be given visitation
rights of the child. This order will be in force for a period of one
year. The parties will be at liberty to seek modification of this order
after a period of one year.
7. Condition Nos. 2 & 3 of the directions issued as per
para 5 of the judgment dated 7.2.2022 in WP(Crl.) No. 67/2022
will stand modified and substituted as above.
8. Further, Sri.R.T.Pradeep, learned counsel for the
applicant (wife) will ensure that the details of the whereabouts of
the child is duly intimated to Sri.M.R.Sarin Panicker, learned
counsel for R-4 (husband).
I. A. No. 1 of 2023 in
W. P. (Crl.) No. 67 of 2022
..5..
9. Further, the learned Advocates on both sides would
ensure that they should take steps to co-ordinate with the parties,
so that facility is evolved for the video calls either through Google
Meet/BOTIM.
With these observations and directions, the above I.A. will
stand finally disposed of.
Sd/-
ALEXANDER THOMAS,
JUDGE
Sd/-
C. JAYACHANDRAN,
JUDGE
MMG
12-04-2023 /True Copy/ Assistant Registrar
