Kerala High Court
Roshna Riyad vs Muhammed Riyad on 2 August, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
OP (FC) NO. 405 OF 2024
AGAINST THE ORDER DATED 09.04.2024 IN IA 13/2024 IN GOP NO.2366 OF
2023 OF FAMILY COURT, KUNNAMKULAM
PETITIONER/RESPONDENT/PETITIONER:
ROSHNA RIYAD, AGED 37 YEARS
D/O ABOOBACKER, PONNAYATH HOUSE,
EDAKKAZHIYOOR P.O & VILLAGE,
CHAVAKKAD TALUK, THRISSUR, PIN - 680515.
BY ADVS.
RAJIT
RAJITHA NAIR M.
RESPONDENT/RESPONDENT/RESPONDENT:
MUHAMMED RIYAD, AGED 42 YEARS
S/O ERACHAM VEETTIL HAMSA, ERACHAM VEETTIL,
ALOOR P.O., MATTOM VILLAGE, KUNNAMKULAM TALUK,
THRISSUR, PIN - 680603.
SRI MAHESH V.MENON
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
02.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC) NO. 405 OF 2024
-2-
JUDGMENT
Devan Ramachandran, J.
The petitioner - mother of twins, aged 9
years - assails Ext.P9 order of the learned
Family Court, Kunnamkulam, as being illegal and
unlawful, explaining that the same has, in fact,
dismissed an application filed by her seeking to
modify an earlier order, namely Ext.P4, whereby,
the overnight custody of the children had been
granted to the respondent - husband on certain
days, whenever he is in Kerala.
2. Sri.Rajit - learned counsel for the
petitioner, argued that both Exts.P4 and P9
orders have been issued by the learned Family
Court without interacting with the children and
without discerning their wishes or requirements.
He pointed out that his client had been
constrained to move the learned Family Court
through I.A.No.13/2024 in GOP No.2366/2023
OP (FC) NO. 405 OF 2024
because, the children are exhibiting great
reluctance to go with the father under an
overnight arrangement. He, however, affirmed
that his client has no objection to the father
visiting the children during the day time; but
that, since the children are unwilling to go
with him for the night, they cannot be
pressurized to do so since, it will cause them
trauma and stress. He thus prayed that this
Original Petition be allowed.
3. Sri.Mahesh V.Menon - learned counsel for
the respondent, on the other hand, submitted
that the learned Family Court has acted without
error in issuing Ext.P4; and in dismissing the
subsequent application by the petitioner,
through Ext.P9 order. He argued that, since the
children were comfortable with both the parents,
their right to be in the company of his client,
whenever he comes to Kerala - which he says he
OP (FC) NO. 405 OF 2024
does every 45 days - is inviolable.
4. We have evaluated the afore rival
contentions and have examined the orders
impugned.
5. As rightly argued by Sri.Rajit, the
impugned order has been issued by the learned
Family Court in I.A.No.13/2024, filed by the
petitioner seeking modification of Ext.P4 order.
As per Ext.P4, the learned Family Court found
that the welfare of the children requires the
company, love and affection of both parents;
and, in an abstract sense, we cannot find fault
with it.
6. However, it is conspicuously absent in
the aforesaid order if the learned Court had
sought for the opinion of the children, or had
interacted with them; but still granted their
overnight custody to the father on certain days,
whenever he is in Kerala. This was sought to be
OP (FC) NO. 405 OF 2024
modified by the mother, through I.A.No.13/2024,
which culminated in Ext.P9; but, there again,
we find that the learned Family Court has
entered into an opinion that, since the children
are only 9 years in age, they cannot make any
'intelligent preference'(sic).
7. However, the specific case of the
petitioner - mother, is that she has no
objection to any type of custody being given to
the father, provided the children agree; and
that she has been constrained to approach this
Court, solely because they show extreme
reluctance for an overnight stay with him.
8. Obviously, this is an issue that the
learned Family Court ought to have considered
before having been issued Ext.P9, particularly
because, as we have already said above, even
when Ext.P4 was issued, we do not see that the
children had been taken into confidence. The
OP (FC) NO. 405 OF 2024
opinion of the learned Family Court, that
children of 9 years cannot make any 'intelligent
preference' cannot be approved in these times
because, we have seen from our experience
dealing with such matters, that most of them are
able to articulate pretty well.
9. In any event, the reluctance of the
children or otherwise, is an issue that ought to
have been considered by the learned Family
Court, after interacting with them, before an
order like Ext.P9 could have been issued.
In the afore circumstances, we allow this
Original Petition and set aside Ext.P9; with a
consequential direction to the learned Family
Court, Kunnamkulam, to reconsider I.A.No.13/2024
in GOP No.2366/2023, after interacting with the
children; thus culminating in an appropriate new
order, as expeditiously as is possible, but not
later than two months from the date of receipt
OP (FC) NO. 405 OF 2024
of a copy of this judgment.
We clarify that we have not entered into the
merits of the rival contentions, nor have we
found the actions of the learned Family Court to
be in error, except that it did not interact
with the children before settling its opinion;
and therefore, that it is within its competence
to decide the matter in any manner that it may
deem fit, following due procedure and subject to
law.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
akv JUDGE
OP (FC) NO. 405 OF 2024
APPENDIX OF OP (FC) 405/2024
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE ORIGINAL PETITION
FILED BY THE RESPONDENT IN GOP NO.
2633/2023 02.03.2023 BEFORE THE FAMILY
COURT KUNNAMKULAM
EXHIBIT P2 A TRUE COPY OF THE APPLICATION IA NO.
2/2023 IN GOP NO. 2366/2023 FILED BY
THE RESPONDENT HEREIN BEFORE THE
FAMILY COURT, KUNNAMKULAM DATED
19.10.2023
EXHIBIT P3 A TRUE COPY OF THE OBJECTION FILED BY
THE PETITIONER TO EXT P2 APPLICATION
BEFORE THE FAMILY COURT KUNNAMKULAM
DATED 21.11.2023
EXHIBIT P4 A TRUE COPY OF THE ORDER DATED
03.01.2024 IN I A 2/2023 IN G.O.P
2366/2023 OF THE FAMILY COURT,
KUNNAMKULAM
EXHIBIT P5 A TRUE COPY OF THE APPLICATION
ALLEGING VIOLATION OF THE EXT. P4
FILED BY THE RESPONDENT BEFORE THE
FAMILY COURT KUNNAMKULAM DATED
19.01.2024
EXHIBIT P6 A TRUE COPY OF THE OBJECTION TO EXT P5
FILED BY THE PETITIONER BEFORE THE
FAMILY COURT KUNNAMKULAM DATED
03.02.2024
EXHIBIT P7 A TRUE COPY OF THE APPLICATION IA
13/2024 IN G.O.P 2366/2023 FILED BY
THE PETITIONER BEFORE THE FAMILY COURT
KUNNAMKULAM SEEKING MODIFICATION OF
THE EXT P4 ORDER
EXHIBIT P8 A TRUE COPY OF THE OBJECTION TO EXT P7
OP (FC) NO. 405 OF 2024
FILED BY THE RESPONDENT BEFORE THE
FAMILY COURT KUNNAMKULAM
EXHIBIT P9 A TRUE COPY OF THE ORDER DATED
09.04.2024 IN I A 13/2024 IN G.O.P
2366/2023 OF THE HON'BLE FAMILY COURT,
KUNNAMKULAM
