Kerala High Court
Divya. S. Nair vs Arunjith Sasidharan on 3 February, 2023
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 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
O.P(FC) NO.1 OF 2023
AGAINST PROCEEDINGS DATED 19.11.2022 IN I.A.NO.3 OF 2022 IN O.P(G
AND W)105 OF 2020 ON THE FILE OF THE LEARNED FAMILY COURT,
KOTTAYAM AT ETTUMANOOR DIRECTING THE MINOR CHILD, DHEERAJ S.NAIR
TO BE PRODUCED BEFORE COURT ON 03.12.2022
PETITIONER/RESPONDENT IN I.A NO.3 OF 2022 IN OP (G AND W) 105 OF
2020:
DIVYA. S. NAIR
AGED 34 YEARS
D/O.SASIDHARAN NAIR, 'JAYASREE', KUMARANELLORE TEMPLE
ROAD, KUMARANELLORE P.O., KOTTAYAM, PIN - 686016
BY ADVS.
A.PARVATHI MENON
P.SANJAY
PAUL VARGHESE (PALLATH)
KIRAN NARAYANAN
PRASOON SUNNY
RAHUL RAJ P.
AMRUTHA M. NAIR
RESPONDENT/PETITIONER IN I.A.NO.3 OF 2022 IN O.P.(G AND W) 105 OF
2020:
ARUNJITH SASIDHARAN
AGED 39 YEARS, S/O.SASIDHARAN NAIR, 'SURABHI',
MAVELIKKARA P.O, PIN - 690101
BY ADVS.
P.C. Haridas Pulickal Chandrasekhara pillai
P.S.GOVIND(K/000824/2022)
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON
10.01.2023, THE COURT ON 03.02.2023 DELIVERED THE FOLLOWING:
2
O.P.(FC) No.1 of 2023
JUDGMENT
P.G.Ajithkumar, J.
The respondent in O.P(G&W) No.105 of 2020 of the
Family Court, Kottayam at Ettumanoor has filed this Original
Petition under Article 227 of the Constitution of India. The
petitioner seeks to set aside Ext.P16 to the extent it directs
production of the child Dheeraj.S.Nair before the Family
Court.
2. On 04.01.2023 notice was directed to be served on
the respondent. The respondent entered appearance through
his learned counsel.
3. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.
4. O.P(G&W) No.105 of 2020 was filed by the
respondent seeking to appoint him the guardian of the child
and to give him custody. A compromise was entered into
between the parties on 18.09.2020. O.P(G&W) No.105 of
2020 was disposed of accordingly. The respondent later filed
I.A.No.2 of 2022 seeking to modify the said judgment, which
O.P.(FC) No.1 of 2023
was rendered on the basis of a compromise agreement. He
has also filed I.A.No.3 of 2022 for a direction for production of
the child before the Family Court. The petitioner has filed
counter affidavits in both the said interlocutory applications.
She has also produced medical reports to show that
production of the child before the court would not be
conducive to the interest and welfare of the child. On earlier
two occasions, the child was produced before the Family Court
in terms of the directions in that regard, and that created
much mental strain and agony to the child. The grievance of
the petitioner is that the Family Court, without considering
those aspects, had directed production of the child before the
court.
5. Earlier the petitioner has filed O.P.(FC) No. 672 of
2022 complaining that a certified copy of the proceedings
dated 19.11.2022 was not issued to her. As per the direction
in the judgment in O.P.(FC) No.672 of 2022, a copy of the
said proceedings was issued to the petitioner, which is
produced as Ext.P16. That proceedings would show that the
petitioner was directed to produce the child before the Family
O.P.(FC) No.1 of 2023
Court on when the order in I.A.No. 2 of 2022 is proposed to
be pronounced.
6. As per Ext.P2(a) decree, which was passed in
terms of Ext.P2 (b) compromise, the respondent was given
permission to meet the child at the school on any of the two
working days in a month. Interim custody during Onam and
Christmas holidays and also during summer vacations was
allowed to the respondent. He has filed I.A No.2 of 2022 to
modify Ext.P2(a) decree. Along with I.A No.2 of 2022, the
respondent filed IA No.3 of 2022 to direct the petitioner to
produce the child before the Court. Petitioner filed objections
in both those petitions. The Family Court after hearing the
said interlocutory applications, Exts.P3 and P5, posted the
matter to pronounce orders. Simultaneously, the petitioner
was directed to produce the child before the Court.
7. The petitioner would contend that production of the
child before the Court on earlier occasions resulted in much
strain and trauma to the child and therefore his repeated
production before the Court should be avoided. He has
produced Exts.P3 series and P4 series, which are documents
O.P.(FC) No.1 of 2023
showing that the child was taken to the hospital with
allegations that stress related complications were developed
in him. Whether or not such developments occurred as a
result of his production before the Court or the visit of the
child by the respondent are matters to be considered by the
Family Court.
8. The respondent filed I.A No.2 of 2022, Ext.P3
pointing out change of circumstances and the necessity for
modifications to the custody order. In order to pronounce
orders on that application, production of the child before the
Court is unnecessary. The petitioner alleges that frequent
production of the child before the Court results in developing
stress and mental trauma to the child. Needless to say that
that production of a child before a Court can be insisted only
on unavoidable circumstances. As per Ext.P2(a), the
respondent has the right of visitation of the child. Till the said
decree is modified, the parties have to honour the terms in it.
9. In such circumstances, we are of the view that the
order of the Family Court directing the petitioner to produce
the child before the Family Court at the time of pronouncing
O.P.(FC) No.1 of 2023
the order in I.A.No.2 of 2022 is unnecessary. Therefore the
proceedings dated 19.11.22 of the Family Court, Kottayam at
Ettumanoor, to the extent it directs production of the child,
Dheeraj.S. Nair before the Court is set aside.
This original petition is allowed to that extent. The
Family Court, Kottayam at Ettumanoor can proceed with I.A.
Nos.2 and 3 of 2022 in accordance with law.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
PV
O.P.(FC) No.1 of 2023
APPENDIX OF OP (FC) 1/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE COPY OF GOP 105/2020
Exhibit P2(a) COPY OF THE DECREE DATED 24.11.2020 IN
OP 105/2020
Exhibit P2(b) TRUE COPY OF THE COMPROMISE
PETITION/AGREEMENT SIGNED BY BOTH
PETITIONER AND RESPONDENT DATED
18.09.2020
Exhibit P3 TRUE COPY OF THE IA NO.2/2022 IN OP
(G&W) NO.105/2020 FILED 21.04.2022
BASED ON EXT P1 AGREEMENT BY GRANTING
THE PERMANENT GUARDIANSHIP CUSTODY
Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT IN
IA NO.2/2022 IN OP (G&W) NO.105/2020
FILED BY PETITIONER DATED 05.07.2022
Exhibit P5 TRUE COPY OF THE IA 3/22 IN OP(G&W)
NO.105/2020 FILED BY THE RESPONDENT IN
FAMILY COURT AND ALSO AFFORDS HIM
TEMPORARY CUSTODY OF THE CHILD DATED
20.04.2022
Exhibit P6 TRUE COPY OF THE COUNTER FILED BY
PETITIONER DATED 05.07.2022
Exhibit P7 TRUE COPY OF THE LETTER SUBMITED BY
THE PETITIONER BEFORE THE PRINCIPAL OF
THE SCHOOL INFORMING THE SCHOOL
AUTHORITIES ABOUT THE COMPROMISE
DECREE PASSED IN THE ABOVE CASE AND TO
ALLOW THE RESPONDENT TO COMPLY THE
DECREE PASSED BY THE HON'BLE COURT
DATED 8.06.2022
Exhibit P8 TRUE COPY OF THE RELEVANT PAGES OF EP
NO.29/2021 FILED BY RESPONDENT
O.P.(FC) No.1 of 2023
ADMITTING THE COMPROMISE DECREE FOR
EXECUTING THE SAME COMPROMISE DECREE
DATED 14.09.2021
Exhibit P9 TRUE COPY OF THE CERTIFICATE OF ASIA
BOOK OF RECORDS DATED 19.10.2021
Exhibit P10 TRUE COPY OF THE CERTIFICATE OF INDIA
BOOK OF RECORDS DATED 17.7.2021
Exhibit P11 COPY OF THE CERTIFICATE OF INDIAN BOOK
OF RECORDS DATED 12.10.2021
Exhibit P12 COPY OF THE MATHRUBHUMI NEWSPAPER
DATED 09.08.2021
Exhibit P13(a) TRUE COPY OF THE O.P. TICKET DATED
28.07.2022 FROM MEDICAL COLLEGE,
HOSPITAL, KOTTAYAM
Exhibit P13(b) TRUE COPY OF THE MEDICAL REPORT DATED
28.07.2022
Exhibit P13(c) TRUE COPY OF THE TRIAGE FORM AND
REPORT FROM THE EMERGENCY AND TRAUMA
DEPARTMENT DATED 30.07.2022
Exhibit P14(a) TRUE COPY OF THE OP TICKET DATED
05.11.2022
Exhibit P14(b) CERTIFICATE ISSUED BY ASST. PROFESSOR,
DEPARTMENT OF PAEDIATRICS, GOVERNMENT
MEDICAL COLLEGE, KOTTAYAM DATED
22.11.2022
Exhibit P15 TRUE COPY OF THE SAID JUDGMENT DATED
05.12.2022 BEFORE THE HON'BLE HIGH
COURT KERALA
Exhibit P16 TRUE COPY OF THE CERTIFIED COPY OF THE
PROCEEDINGS DATED 19.11.22 IN IA
3/2022 IN OP 105/2020
