Kerala High Court
Radhakrishnan Nair vs Manjula P.M on 7 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945
R.P. NO. 763 OF 2023
AGAINST THE JUDGMENT DATED 04.04.2023 IN MAT.APPEAL
NO.738 OF 2018 OF THE HIGH COURT OF KERALA
REVIEW PETITIONER/APPELLANT/PETITIONER:
RADHAKRISHNAN NAIR
AGED 55 YEARS, S/O PARAMESHWARAN NAIR,
PUTHENVEEDU, SREEKANDAMANGALAM,
MUTTATHIPARAMBU P.O., CHERTHALA, ALAPPUZHA
DISTRICT, PIN - 688527.
BY ADVS.
S.RENJITH
P.K.SREEVALSAKRISHNAN
S.UNNIKRISHNAN (NELLAD)
K.R.PRATHISH
JOEL CHALAMANA
RESPONDENT/RESPONDENT/RESPONDENT:
MANJULA P.M.,
AGED 46 YEARS, D/O GOPALAKRISHNAN,
KRISHNAKRIPA HOUSE, VENGERI P.O., KOZHIKODE
DISTRICT, PIN - 678010.
BY ADV P.V.ANOOP
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
R.P.No.763 of 2023 in
Mat.Appeal No.738 of 2018
ORDER
P.G. Ajithkumar, J.
The petitioner is the appellant in Mat.Appeal No.738 of
2018. He seeks to review the judgment dated 04.04.2023
by which the Mat.Appeal was disposed of. He has filed this
petition under Section 114 read with Order XLVII, Rule 1 of
the Code of Civil Procedure, 1908.
2. There was a delay of 75 days in filing the Review
Petition, which was condoned by allowing C.M.Appl.No.1 of
2023.
3. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.
4. The petitioner has filed O.P.No.37 of 2017 before
the Family Court, Kozhikode claiming permanent custody of
his 12 year old son. The respondent is the mother. The
claim of the petitioner for permanent custody of the child
was declined, but the Family Court as per the judgment
R.P.No.763 of 2023 in
Mat.Appeal No.738 of 2018
dated 25.05.2018 allowed him to have visitation right. He
was allowed to interact with the child from 11.00 a.m till
4.50 p.m. on every third Saturday.
5. In the Mat.Appeal, he challenged the said
judgment and the decree. He filed I.A.No.1 of 2023 seeking
interim custody of the child during the midsummer
vacation. Both the appeal and the interlocutory application
were disposed of on 04.04.2023 ordering as follows:-
"12. Accordingly, this appeal is disposed of as follows:
i) The respondent shall have permanent custody of
the child;
ii) The appellant shall be given periodical custody,
namely, half of the holidays during Onam and
Christmas and midsummer vacation;
iii) The appellant shall also be given custody of the
child on every second Saturday and Sunday. The
custody shall be given at 10.00 a.m. and returned
at 4.00 p.m. of the first and last day respectively
of each spell;
iv) Such custody shall be given and taken back from
the premises of the Family Court, Kozhikode; and
v) The appellant/respondent shall be allowed to
make audio/video call between 7.00 and 7.30
R.P.No.763 of 2023 in
Mat.Appeal No.738 of 2018
p.m. on every alternate day while the child is in
the custody of the other parent.
I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018
During this vacation, custody of the child shall be
given to the petitioner/appellant from 08.04.2023 till
07.05.2023. I.A.No.1 of 2023 is ordered accordingly."
6. The grounds for review are that the petitioner
was not given sufficient opportunity to make his
submissions, and he was under the impression that
I.A.No.1 of 2023 alone was being considered while the
matter was heard on 04.04.2023. The petitioner further
would contend that clause No.(iii), which governs interim
custody of the child on second Saturdays and Sundays
causes much difficulty and inconvenience to the petitioner
inasmuch as he has to travel from Alappuzha where he
resides, to Kozhikode from where he has to get custody of
the child on consecutive days along with the child.
7. The appeal and I.A.No.1 of 2023 were heard and
disposed of on 04.04.2023, after hearing the learned
counsel on both sides. The mistaken impression of the
R.P.No.763 of 2023 in
Mat.Appeal No.738 of 2018
counsel of the petitioner, in the above circumstances,
cannot be a reason for review.
8. Having heard the learned counsel on either side,
we are of the view that the timings for interim custody of
the child on Saturdays and Sundays would cause
inconvenience to the petitioner as well as the child.
Considering the distance between Alappuzha and Kozhikode
modification of the said direction is required, particularly to
safeguard the interest of the child. The respondent is not
averse fpr making such a modification also.
9. Accordingly, this Review Petition is disposed of
and clause (iii) in the operative part of the judgment dated
04.04.2023 in the Mat.Appeal is modified by directing that
the petitioner/appellant shall be given custody of the child
from 4.00 p.m. on every second Friday till 7.00 p.m. on the
ensuing Sunday. The petitioner can get and return custody
of the child from the residence of the respondent. Handing
over and return of custody of the child in compliance to
R.P.No.763 of 2023 in
Mat.Appeal No.738 of 2018
other clauses in the judgment shall be from the premises of
the Family Court, Kozhikode.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
