Kerala High Court
Rakesh B.G vs Nisha R on 29 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945
MAT.APPEAL NO. 222 OF 2022
AGAINST THE JUDGMENT DATED 03.03.2022 IN O.P.(G&W) NO.117
OF 2021 ON THE FILE OF THE FAMILY COURT, KOTTARAKKARA
APPELLANT/RESPONDENT:
RAKESH B.G.,
AGED 37 YEARS, S/O. P. GOPALA PILLAI, RAJISHA
BHAVAN,M THAZHAMEL, ANCHAL P.O., KOLLAM-691306.
BY ADVS.
P.SANJAY
A.PARVATHI MENON
BIJU MEENATTOOR
PAUL VARGHESE (PALLATH)
P.A.MOHAMMED ASLAM
KIRAN NARAYANAN
PRASOON SUNNY
RAHUL RAJ P.
RESPONDENT/PETITIONER:
NISHA R.,
W/O. RAKESH B.G., 48/574 C, DEVI PRASADAM, MRA
66/2 B, MLA ROAD, ARAMADA P.O.,
THIRUVANANTHAPURAM-695032.
BY C.UNNIKRISHNAN (KOLLAM)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 29.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
Mat.Appeal No.222 of 2022
JUDGMENT
P.G. Ajithkumar, J.
The appellant is the respondent in O.P.(G&W) No.117 of
2021 on the file of the Family Court, Kottarakkara. He is the
father of the minor child Devapriya, now aged 10 years. The
respondent is the mother. She has filed the aforesaid original
petition. The appellant filed O.P.(G&W) No.1089 of 2018. The
Family Court tried both the original petitions jointly. In terms
of the common judgment dated 03.03.2022, the respondent
was declared to be the guardian of the minor and she is given
permanent custody of the child. The appellant is allowed right
of visitation. Challenging correctness and legality of the said
judgment and the decree, this appeal has been filed under
Section 19(1) of the Family Courts Act, 1984.
2. On 24.03.2022, this appeal was admitted to file.
The respondent has entered appearance. This Court passed
interim orders regarding custody of the child from time to
time. This matter was referred for mediation, but the attempt
for a settlement was futile. As per the order dated
Mat.Appeal No.222 of 2022
29.08.2022, the appellant was allowed custody of the child
from 05.09.2022 till 07.09.2022.
3. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondent.
4. The Family Court, Kottarakkara examined PWs.1
and 2 and RWs.1 and 2. Exts.A1 to A10 and Exts.B1 to B14
were received in evidence. After considering the said evidence
in detail, decree impugned in the appeal was passed. The
appellant assailing the findings in the impugned judgment has
filed this appeal. The main contention was that since the
respondent was abroad, it is only appropriate for giving
custody of the child to him. It is contended that the Family
Court did not consider the welfare of the child while allowing
permanent custody of the child to the respondent, especially
when she is abroad. It is alleged that the Family Court did not
adhere to the principles laid down by the apex Court in regard
to the custody of the child in Yashita Sahu v. State of
Rajasthan [(2020) 3 SCC 67 : 2020 KHC 6045] and
Mat.Appeal No.222 of 2022
Kumar V.Jehangir v. Chethana Ramatheertha [AIR 2004
SC 1525]. On the said grounds, the appellant seeks to set
aside the judgment and decree.
5. This Court on 14.03.2023, after considering the
rival contentions with respect to the custody of the child and
also the request of the respondent to take the child abroad,
passed a detailed order in I.A.No.1 of 2023. The order reads,-
"The respondent in the appeal has filed this
interlocutory application seeking permission to take her
10 year old daughter, Devipriya, to Australia along with
her and to make appropriate modifications in the order
dated 03.03.2022 of the Family Court, Kottarakkara in
O.P.(G&W) No.117 of 2021.
2. The child is in the custody of the petitioner-
mother in terms of the order of the Family Court dated
03.03.2022 in O.P.(G&W) No.117 of 2021. The said
order is subject to the right of interim custody and
visitation provided to the respondent-father, which are
follows:-
"3. The visitation right of the respondent/father with
the child is allowed on Saturdays and Sundays
from 10.a.m. on Saturday till 5 P.M. on Sunday;
4. The father is entitled to get interim custody of the
child during the said period;
Mat.Appeal No.222 of 2022
5. In addition to he is entitled to the custody of the
child during midsummer vacation for first 15 days,
on the month of April every year;
6. The respondent/father is allowed to see the child
through video call or to call the child through
telephone on every day from 5 p.m. to 9 p.m."
3. The petitioner would contend that she has been
issued with a temporary skill shortage visa by the
Australian Government and when she travels to
Australia, she can take along with her the child also.
She would contend that all affairs of the child can be
taken care of by her in Australia and she can ensure
welfare of the child. She accordingly seeks permission
to take the child along with her to Australia.
4. The respondent filed a counter affidavit. He does
not oppose the petitioner taking the child along with
her to Australia. He, however, expressed his anxiety
that once the child is taken abroad, there is possibility
of denying him even the right of interaction, which may
ultimately result in parental alienation. He further
contended that the allegation that he did not exercise
his visitation right is false.
5. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.
6. Insofar as the petitioner's request for permission
to take the child along with her to Australia, the
Mat.Appeal No.222 of 2022
respondent does not raise any serious objection. His
only concern is that his right of interaction shall not be
denied even when the child is abroad. The learned
counsel appearing for the respondent further would
submit that the right of the respondent to have
interaction with the child during her vacation in
Australia may be ensured. It is also submitted that
depending upon the time zone in Australia, the
convenient time for his interacting with the child may
be fixed.
7. In the light of the aforesaid contentions of the
parties, the petitioner can be allowed to take the child,
Devi Priya, along with her to Australia. The respondent
shall have right to interact with the child through video
or audio call every day for 15 minutes during evening
hours. The petitioner as soon as she reaches Australia,
shall inform the respondent about the convenient time
in the evening for interaction between the child and
respondent. The directions regarding interim custody
and visitation contained in the order of the Family Court
dated 03.03.2022 in O.P.(G&W) No.117 of 2021 are
modified to the above extent. I.A.No.1 of 2023 is
allowed in the aforesaid terms.
8. Right of the respondent to have interim custody
of the child during school vacation will be considered
while disposing of Mat.Appeal No.222 of 2022."
Mat.Appeal No.222 of 2022
6. Once the child is taken abroad by the respondent,
the provision for giving periodical custody to the appellant is
not workable. In such circumstances, the directions in the
impugned decree regarding the right of visitation is set aside.
However, right of the appellant to have custody of the child
during the periods of vacation as well as opportunity to
contact the child through audio/video calls should be ensured.
Unless the child has opportunity to interact with the appellant-
father atleast occasionally, that may have the result in
snapping the relationship between the father and the child,
which is quite disadvantageous to the proper upbringing of
the child.
7. Taking such aspects into account, we direct that
the respondent shall bring the child to India, if not every
annual school vacations, atleast in the alternate year, during
the annual school vacation of the child. During that period,
the appellant shall be given custody of the child, if not
inconvenient or interruptive to the school days of the child, for
a period of 20 days. The respondent is also direcdted to
Mat.Appeal No.222 of 2022
ensure that the appellant is able to contact the child through
video call every alternate day for 15 minutes between 7.30
p.m. and 8.00 p.m. (Australian time). Half of the travel
expenses of the respondent and the child from and to
Australia in order to give interim custody of the child for the
appellant shall be borne by him.
With the aforesaid modifications to the decree dated
03.03.2022, this appeal is disposed of.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
Mat.Appeal No.222 of 2022
APPENDIX OF MAT.APPEAL 222/2022
RESPONDENT ANNEXURES
ANNEXURE R1A ORIGINAL COPY OF THE VISA GRANTS
LETTER DATED 14.11.2022
ANNEXURE R1B ORIGINAL COPY OF THE GOLD LOAN DETAILS
BEFORE THE INDIAN BANK POOJAPPURA
BRANCH DATED 13/06/2022 AND 08/12/2022
ANNEXURE R1C ORIGINAL COPY OF THE DETAILS OF HOME
LOAN A/C NO. LBTVM00005940269 ISSUED
BY ICICI BANK DATED 24/02/2023
ANNEXURE R1D ORIGINAL COPY OF STATEMENT OF ACCOUNT
OF STATE BANK OF INDIA DATED
15/02/2023
