Josin George vs Joicy John
2023 Latest Caselaw 7254 Ker

Citation : 2023 Latest Caselaw 7254 Ker
Judgement Date : 27 June, 2023

Kerala High Court

Josin George vs Joicy John on 27 June, 2023

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                              &
          THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
   TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945

                  OP (FC) NO. 344 OF 2023

        OP(G&W) 220/2018 OF FAMILY COURT, THODUPUZHA
PETITIONER/PETITIONER:

  JOSIN GEORGE, AGED 34 YEARS, S/O. GEORGE, KUREEKKATTIL HOUSE,
  ELANJI P.O., ELANJI VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM
  DISTRICT. PIN: 686665 REPRESENTED BY HIS POWER OF ATTORNEY
  HOLDER GEORGE K.P., AGED 75, KUREEKKATTIL HOUSE, ELANJI P.O.
  ERNAKULAM DISTRICT, PIN - 686665.

  BY ADVS.
  ANEESH JAMES
  SIBY CHENAPPADY
  ANU GEORGE
  AIBEL MATHEW SIBY
  ELANA ROSE SIBY

RESPONDENTS/RESPONDENTS:

 1 JOICY JOHN, AGED 30 YEARS, D/O. M.U.ULAHANNAN, MAMKULATHIL
   HOUSE, VANDAMATTOM P.O., KODIKULAM VILLAGE, THODUPUZHA TALUK,
   IDUKKI DISTRICT, PIN - 685582.

 2 M.U. ULAHANNAN, AGED 62 YEARS, MAMKULATHIL HOUSE,
   VANDAMATTOM.P.O., KODIKULAM VILLAGE, THODUPUZHA TALUK, IDUKKI
   DISTRICT, PIN - 685582.

 3 ELSAMMA THOMAS, AGED 58 YEARS, W/O. M.U. ULAHANNAN MAMKULATHIL
   HOUSE, VANDAMATTOM.P.O., KODIKULAM VILLAGE, THODUPUZHA TALUK,
   IDUKKI DISTRICT, PIN - 685582.

   BY ADVS.
   SOJAN MICHEAL
   ANTONY ROBERT DIAS(K/65/2015)

     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
27.06.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP(FC)No.344/2023                    2




                                J U D G M E N T

A.Muhamed Mustaque, J.

This matter arises from an order passed by the Family Court,

Thodupuzha, in an application apparently to modify a compromise

decree related to child custody. As per the child custody, the

custody is given to the mother. Mother is working in Ireland.

But the child resides with maternal grandparents. The father was

also conferred with visitorial rights. The father was in India.

Now he is in the USA.

2. The application was filed by the mother to take the child

to Ireland. This has been allowed. Challenging this order, the

father has come up before this Court.

3. It is to be noted that no notice was given to the

father. The Family Court, Thodupuzha, is of the view that the

child is already with the mother and there is no necessity to

issue notice to the father, forgetting the fact that the father is

having visitorial rights every month. The matter is questioned

under Article 227 of the Constitution of India before us,

challenging the propriety of the Family Court in passing such

order. Though it being a final order, the remedy normally would

lie as an appeal, we entertained this original petition for the

reason that the Family Court improperly exercised its jurisdiction

in passing an order of this nature.

4. We have interacted with both parties. The father of the

child came online and the mother is present before us.

5. The mother is about to leave for Ireland on 29th of this

month.

6. Having considered the facts and circumstances, we are of

the view that a reasoned order shall be passed by the Family

Court, Thodupuzha, after adverting the objections of the father

within a period of six weeks. The mother shall be allowed to

depose before the Family Court, Thodupuzha, through video

conferencing platform on convenient days chosen by her. If the

father is also not able to reach India, he can also depose before

Family Court, Thodupuzha, through video conferencing platform.

Thereafter, the Family Court, Thodupuzha, is permitted to either

modify the decree already passed or reject the application,

keeping in mind the welfare of the child. Entire exercise shall

be completed within the time mentioned above.

The OP(FC) is disposed of.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

SOPHY THOMAS JUDGE DSV/27.6.23

APPENDIX OF OP (FC) 344/2023

PETITIONER'S EXHIBITS:

Exhibit P1 A TRUE COPY OF THE MEMORANDUM SUBMITTED BY THE COUNSELLOR DATED 25.01.2017 RECORDING THE TERMS OF SETTLEMENT BETWEEN THE PETITIONER AND THE RESPONDENT IN O.P.(G & W) NO. 1/2017 BEFORE THE FAMILY COURT, THODUPUZHA.

Exhibit P2 A TRUE COPY OF THE PETITION IN O.P.(G&W) NO. 220/2018 BEFORE THE FAMILY COURT, THODUPUZHA.

Exhibit P2a) A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN O.P(G&W) NO. 220/2018 ON THE FILES OF THE FAMILY COURT, THODUPUZHA.

Exhibit P3 A TRUE COPY OF THE MEMORANDUM OF AGREEMENT DATED 18.03.2022 ENTERED INTO BETWEEN THE PETITIONER AND THE 1ST RESPONDENT BEFORE THE DISTRICT MEDIATION CENTRE, IDUKKI - THODUPUZHA SUB CENTRE.

Exhibit P4 A TRUE COPY OF THE JUDGMENT DATED 31.03.2022 OF THE FAMILY COURT, THODUPUZHA IN O.P.(DIV) NO. 127/2022.

Exhibit P5 A TRUE COPY OF THE MEMORANDUM OF AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENTS BEFORE THE DISTRICT MEDIATION CENTRE, IDUKKI - THODUPUZHA SUB CENTRE IN O.P.(G&W) NO. 220/2018.

Exhibit P6 A TRUE COPY OF THE JUDGMENT DATED 30.03.2022 OF THE FAMILY COURT, THODUPUZHA IN O.P.(G&W) NO. 220/2018.

Exhibit P7 A TRUE COPY OF I.A. NO.6/2022 FILED BY THE RESPONDENTS IN O.P.(G&W) NO. 220/2018 ON THE FILES OF THE FAMILY COURT, THODUPUZHA.

Exhibit P8 A TRUE COPY OF THE ORDER DATED 10.11.2022 OF THE FAMILY COURT, THODUPUZHA IN I.A. NO.6/2022 IN O.P.(G&W) NO. 220/2018.

Exhibit P9 A TRUE COPY OF I.A. NO.9/2023 FILED BY THE PETITIONER IN I.A. NO. 6/2022 IN O.P.(G&W) NO. 220/2018 ON THE FILES OF THE OF THE FAMILY COURT, THODUPUZHA.

Exhibit P10 A TRUE COPY OF I.A. NO.8/2023 FILED BY THE PETITIONER IN I.A. NO. 6/2022 IN O.P.(G&W) NO. 220/2018 ON THE FILES OF THE OF THE FAMILY COURT, THODUPUZHA.

Exhibit P11 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN I.A. NO. 9/2023 IN I.A. NO. 6/2022 IN O.P.(G&W) NO. 220/2018 ON THE FILES OF THE OF THE FAMILY COURT, THODUPUZHA.

Exhibit P12 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN I.A. NO. 8/2023 IN I.A. NO. 6/2022 IN O.P.(G&W) NO. 220/2018 ON THE FILES OF THE OF THE FAMILY COURT, THODUPUZHA.

Exhibit P13 A TRUE COPY OF I.A. NO.7/2023 IN O.P.(G&W) NO.

220/2018 ON THE FILES OF THE OF THE FAMILY COURT, THODUPUZHA.

Exhibit P14 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN IA 7/2023 IN OP(G&W)220/2018 OF THE FAMILY COURT, THODUPUZHA.

Exhibit P15 A TRUE COPY OF THE ORDER DATED 13.04.2023 PASSED BY THE FAMILY COURT, THODUPUZHA IN I.A. NO. 9/2023 IN I.A. NO. 6/2022 IN O.P.(G&W) NO. 220/2018.

Exhibit P16 A TRUE COPY OF THE ORDER DATED 13.04.2023 PASSED BY THE FAMILY COURT, THODUPUZHA IN I.A. NO. 8/2023 IN I.A. NO. 6/2022 IN O.P.(G&W) NO. 220/2018.

Exhibit P17 A TRUE COPY OF THE ORDER DATED 13.04.2023 PASSED BY THE FAMILY COURT, THODUPUZHA IN I.A. NO. 7/2023 IN O.P.(G&W) NO. 220/2018.