Kerala High Court
Saritha. T vs Vinod.K.V 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
O.P.(FC) NO. 72 OF 2023
AGAINST THE ORDER I.A.NOS.10 AND 13 OF 2023 IN I.A.NO.3
OF 2022 IN O.P.NO.778 OF 2022 ON THE FILE OF THE FAMILY
COURT, KANNUR
PETITIONER:
SARITHA T.,
AGED 34 YEARS, D/O RAVINDRAN, RESIDING AT
THOVORATH HOUSE, KOLACHERY AMSOM DESOM, P.O.
KOLACHERY, KOLACHERY VILLAGE, TALIPARAMBA
TALUK,KANNUR, PIN - 670601.
BY ADVS.
ABDUL RAOOF PALLIPATH
K.R.AVINASH (KUNNATH)
E.MOHAMMED SHAFI
PRAJIT RATNAKARAN
VIDYA M.K.
RESPONDENT:
VINOD.K.V
AGED 42 YEARS, S/O VIJAYAN, MINI NILAYAM, P.O.
PILIKKODE, PILIKOD VILLAGE, HOSDURG TALUK,
KASARGOD, PIN - 671310
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
O.P.(FC) No.72 of 2023
JUDGMENT
P.G. Ajithkumar, J.
The petitioner challenges Exts.P12 and 14 orders of the
Family Court, Kannur in this Original Petition filed under
Article 227 of the Constitution of India. As per Ext.P12 dated
31.01.2023 the petitioner was directed to hand over custody
of the child to the respondent. Since she did not oblige that
direction, the Family Court as per Ext.P14 dated 19.01.2023
directed the Station House Officer, Kasaragod Police Station to
enforce Ext.P12 order. The petitioner challenges the virus of
the said orders.
2. On 09.02.2023, notice was directed to be served
on the respondent. Coercive steps pursuant to Exts.P12 and
P14 orders was deferred for a period of one month. Despite
receiving notice, the respondent did not choose to appear
before this Court.
3. Heard the learned counsel appearing for the
petitioner.
O.P.(FC) No.72 of 2023
4. Marriage of the petitioner and respondent was
solemnised on 04.06.2009. Child, Sanviya Vinod, was born to
them on 22.09.2015. Their marriage was separated as per a
decree dated 10.01.2022 in O.P.No.614 of 2021, which was
filed under Section 13B of the Hindu Marriage Act, 1955.
Custody of the child was entrusted to the petitioner. However,
when she went to Kollam to attend coaching classes, custody
of the child was entrusted to the respondent. Later, following
disputes regarding custody of the child, the petitioner has
filed O.P.No.778 of 2022 before the Family Court, Kannur,
seeking a decree allowing her to have permanent custody of
the child. She filed I.A.No.3 of 2022 in that original petition
seeking interim custody and the Family Court allowed it as per
Ext.P5 order dated 24.12.2022. The respondent was directed
to hand over custody of the child to the petitioner on
26.12.2022. But he did not obey that order. The Family Court
therefore issued Ext.P6 order dated 28.12.2022 in I.A.No.7 of
2022 directing police to enforce Ext.P5 order. Accordingly,
custody of the child was restored to the petitioner.
O.P.(FC) No.72 of 2023
5. As per Ext.P5 order, the petitioner was given
interim custody of the child from 26.12.2022 till
31.12.2022. Therefore, she had to return the child to the
respondent on 31.12.2022. But, she did not. Therefore, the
respondent filed I.A.No.9 of 2023 for a direction to the
petitioner to hand over custody of the child to the
respondent in terms of the direction in Ext.P5 order. The
petitioner filed counter statement explaining that the child
fell ill, and therefore, she was not able to return custody of
the child. Since the petitioner continued to retain custody
of the child, the Family Court as per Ext.P12 order dated
13.01.2023 directed to hand over custody of the child to
the respondent on 15.01.2023 at the premises of the
Kasaragod Railway Station. The respondent alleging that
the petitioner did not comply with that order, filed
I.A.No.13 of 2023. In that application, the Family Court
directed the Station House Officer, Kasaragod to enforce
Ext.P12 order.
O.P.(FC) No.72 of 2023
6. The petitioner would submit that the child, who is
now aged 8 years, expressed her desire not to go along with
the respondent and also considering the discomforts while in
custody of the respondent, the petitioner could not return
custody of the child. The petitioner would contend that all
such matters and also the illness suffered by the child and
also the exigency of her education were brought to the notice
of the Family Court, but those matters were not considered.
Thus, it is contended that Ext.P12 order is erroneous. The
learned counsel appearing for the petitioner further would
submit that the respondent, a carpenter by profession, is
totally disabled to look after the affairs of the child. Being a
girl child, if her custody is entrusted to the respondent, it
would be inconvenient to her and the safety and security of
the child cannot be ensured. Pointing out those aspects and
the observations of the Family Court in Ext.P12 that
O.P.No.778 of 2022 would be decided without any further
delay, the petitioner seeks to allow her to continue in custody
of the child.
O.P.(FC) No.72 of 2023
7. The petitioner disobeyed the order dated
24.12.2022. She should have returned the child to the
respondent on 31.12.2022. All the same, if the child was not
in a position to be returned, the reasons stated thereof should
have been considered by the Family Court. Documents
produced by the petitioner, particularly Ext.P9, shows that the
child had some physical ailments. It is seen that she had
stress related discomforts as well. In such circumstances, the
direction to the mother to return the child to the father, before
taking an appropriate decision as to what would be
advantageous to the welfare of the child, cannot be said to be
correct. In that view of the matter, we are of the view that
Ext.P12 order is based on untenable reasons. It appears that
the court was persuaded by the attitude of the petitioner in
disobeying Ext.P5 order. We also deprecate disobedience on
the part of the petitioner. But that shall not be the sole reason
to issue such a direction. There is thus non-application of
mind in passing Ext.P12.
O.P.(FC) No.72 of 2023
8. In such circumstances, we are of the view that
Ext.P12 order requires interference. Once Ext.P12 order is
held untenable, Ext.P14 also is liable to set aside. Accordingly,
we set aside Exts.P12 and P14 orders. The Original Petition is
allowed. The Family Court will dispose of O.P.No.778 of 2022
as expeditiously as possible so that there shall be a quietus to
the dispute regarding custody of the child.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
O.P.(FC) No.72 of 2023
APPENDIX OF OP (FC) 72/2023
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN OP
614/2021 DATED 10.1.2022 OF THE FAMILY
COURT, KANNUR
EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 2.7.
EXHIBIT P3 TRUE COPY OF THE PETITION IN OP NO.
778/2022 BEFORE THE FAMILY COURT,
KANNUR DATED 3.6.2022
EXHIBIT P4 TRUE COPY OF THE COUNTER IN OP
778/2022 FILED BEFORE THE FAMILY
COURT, KANNUR DATED 29.10.2022
EXHIBIT P5 TRUE COPY OF THE ORDER IN IA 3/2022 IN
OP NO. 778/ 2022 DATED 24.12.2022 OF
THE FAMILY COURT, KANNUR
EXHIBIT P6 TRUE COPY OF THE ORDER IN IA 7/2022 IN
IA 3/2022 IN OP 778/2022 OF THE FAMILY
COURT, KANNUR DATED 28.12.2022
EXHIBIT P7 TRUE COPY OF THE RENT AGREEMENT DATED
15.09.2022
EXHIBIT P8 TRUE COPY OF THE CERTIFICATE ISSUED BY
THANBEEHUL ISLAM HIGHER SECONDARY
SCHOOL DATED 21.11.2022
EXHIBIT P9 TRUE COPY OF THE PRESCRIPTION ISSUED
BY PSYCHIATRY DEPARTMENT OF KANNUR
DISTRICT HOSPITAL DATED 7.1.2023
EXHIBIT P10 TRUE COPY OF THE IA 10/2023 IN IA
3/2022 IN OP 778/2022 BEFORE THE
FAMILY COURT, KANNUR DATED 2.1.2023
FOR RESTORATION OF CUSTODY
O.P.(FC) No.72 of 2023
EXHIBIT P11 TRUE COPY OF THE COUNTER STATEMENT IN
IA 10/2023 IN IA 3/2022 IN OP 778/2022
DATED 9.1.2023 BEFORE THE FAMILY
COURT, KANNUR
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 13.1.2023
IN IA NOS.09/2023 & 10/2023 IN IA
NO.03/2022 IN OP 778/2022 BEFORE THE
FAMILY COURT, KANNUR
EXHIBIT P 13 TRUE COPY OF THE IA 13/2023 IN IA
10/2023 IN IA 3/2022 IN OP 778/2022
BEFORE THE FAMILY COURT, KANNUR DATED
17.1.2023 FOR POLICE AID
EXHIBIT P14 TRUE COPY OF THE ORDER DATED 19.1.2023
IN IA 13/2023 IN IA 3/2023 IN OP
778/2022 OF THE FAMILY COURT, KANNUR
