Kerala High Court
Anitta Alex vs Mathews P Cherry on 7 August, 2023
Mat.Appeal.No.133 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945
MAT.APPEAL NO. 133 OF 2023
AGAINST THE ORDER/JUDGMENT IN OP 604/2021 OF FAMILY COURT,
KOTTAYAM
APPELLANT/IST RESPONDENT:
ANITTA ALEX,AGED 29 YEARS,
D/O.ALEX THAYIL,
RESIDING AT THAYIL HOUSE,
MANJOOR P.O., KURUPPANTHARA,
KADUTHURUTHY VILLAGE,
VAIKOM TALUK,
KOTTAYAM., PIN - 686603
BY ADVS.
PAUL JACOB (P)
SHERU JOSEPH
MATHEW THOMAS
ANAND KRISHNA
RESPONDENTS/ORIGINAL PETITIONER:
1 MATHEWS P CHERRY, AGED 34,
S/O.CHERIYACOB P.M.,
PUTHUSSERY HOUSE,
KARAYAMPARAMBU,
KARUKUTTY P.O.,
KARUKUTTY VILLAGE,
ALUVA TALUK,
ERNAKULAM., PIN - 683576
2 ALEX THAYIL, AGED 66 YEARS,
RESDING AT THAYIL HOUSE,
MANJOOR P.O., KURUPPANTHARA,
KADUTHURUTHY VILLAGE,
VAIKOM TALUK,
KOTTAYAM., PIN - 686603
3 KOCHURANI ALEX, AGED 62 YEARS,
Mat.Appeal.No.133 of 2023
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RESIDING AT THAYIL HOUSE,
MANJOOR P.O., KURUPPANTHARA,
KADUTHURUTHY VILLAGE,
VAIKOM TALUK,
KOTTAYAM., PIN - 686603
BY ADVS.
MEGHA K.XAVIER
C.A.LINCY(K/675/2000)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mat.Appeal.No.133 of 2023
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A.MUHAMED MUSTAQUE & MOHAMMED NIAS C.P., JJ
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Mat.Appeal.No.133 of 2023
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Dated this the 7th day of August, 2023
JUDGMENT
A.Muhamed Mustaque.J
This appeal has been preferred against the judgment in OP
No.604 of 2021 on the file of the Family Court, Ettumanoor. The
mother is before us. The dispute is with regard to the custody of the
minor child born in the wedlock between the parties herein. The
family court, in an application filed by the father allowed the custody
of the child to the father. The relevant portion of the said order reads
thus:-
"(1) The petition is allowed
(2) The petition to hand over the custody of the minor
Cherian Mathew is dismissed.
(3) The petitioner is entitled to have the custody of the minor
during every Saturday and Sunday between 10 a.m. on Saturday
and 5 p.m. on Sunday.
(4) The petitioner shall take the child from the residence of
the 1st respondent at 10 a.m. on Saturday and bring the child to
the residence of the 1st respondent at 5 p.m on Sunday.
(5) The respondents are restrained by way of a decree of
permanent prohibitory injunction from taking the child out of
Kerala without the consent of the petitioner.
(6) The parties are to bear their respective costs."
2. As is seen from the impugned judgment itself, the mother
did not file any objection and there was no occasion for the family
Mat.Appeal.No.133 of 2023
court to advert to the objection raised by the mother. No doubt, the
family court has to bestow its attention to the welfare of the child
while passing such orders. It would be ideal that the mother is also
given an opportunity to raise an objection. It may be true that there
were laches on the part of the mother in raising objection. We note
that there are pending cases between the parties.
3. Taking note of the facts and circumstances, we are of the
view that an opportunity should be given to the mother to raise
objection by way of reconsideration of the matter afresh, and after
affording both the parties an opportunity to adduce evidence.
Therefore, the impugned order is set aside and remanded the matter
back for fresh consideration. This matter shall also be tagged along
with the pending matters between the parties. However, till further
orders are passed, we allow the father to have the custody of the child
on 1st and 3rd Friday evening of every month till the following Sunday,
5 p.m. We also allow the father to have a custody of the child from
31.8.2023 at 10.am. till 2.9.2023 at 5.30 p.m. The child shall be
handed over and returned from the residence of the mother.
The Mat.Appeal is disposed of as above.
Sd/- A.MUHAMED MUSTAQUE , JUDGE
Sd/- MOHAMMED NIAS.C.P., JUDGE
dlk 7.8.2023
