Kerala High Court
Chinnu Darwin vs Feialoh Francis P on 9 February, 2024
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945
OP (FC) NO. 75 OF 2024
GOP 2799/2021 OF FAMILY COURT,ERNAKULAM
PETITIONER(S)/RESPONDENT
CHINNU DARWIN
AGED 34 YEARS
D/O. DARWIN JOSEPH, PALAM ROAD, VADUTHALA, ERNAKULAM,
PIN - 682023
BY ADV V.S.BABU GIREESAN
RESPONDENT(S)/PETITIONER
FEIALOH FRANCIS P
AGED 38 YEARS
S/O. FRANCIS XAVIER P.M. AVJ RIVERIN APARTMENT,
AROOKKUTTY ROAD, AROOKKUTTY, ALAPPUZHA,, PIN - 688535
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
5.2.2024, THE COURT ON 09.02.2024 DELIVERED THE FOLLOWING:
OP(FC).75 of 2024
2
ANU SIVARAMAN & C.PRATHEEP KUMAR, JJ.
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O.P.(FC).75 of 2024
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Dated : 9th February, 2024
JUDGMENT
C.Pratheep Kumar, J.
1. This is a petition filed by a wife against her husband who are fighting before
the Family Court, Ernakulam, for the custody of their only son aged 4½ years,
born on 12.8.2019. The husband filed Ext.P1 GOP No.2799/2021 before the
Family Court, claiming permanent custody of the child. Along with the OP, he
filed Ext.P2 application for interim custody of the child to which the wife
filed Ext.P3 counter affidavit. As per Ext.P4 interim order dated 26.4.2022,
the learned Family Court Judge permitted the husband to see the child at the
premises of the Family Court on the first and last Sundays, between 3.00 to
4.00 pm till the disposal of the OP.
2. As per Ext.P5 application, the husband reported before the Family Court that
the wife had willfully disobeyed Ext.P4 order and not permitting him to see
the child and praying for taking appropriate action against the wife for
violation of Ext.P4 order. The wife filed Ext.P6 counter affidavit against
Ext.P5 application. After hearing both sides, the Family Court passed Ext.P7
order holding that the husband is entitled to have free interaction with the
child during the period provided in Ext.P4 order. The Family Court further
OP(FC).75 of 2024
clarified that during the said period of interaction, if the child so prefers, the
petitioner (husband) can take the child outside the Court premises, including
the nearby park and directed the wife to comply with the above order in letter
and spirit. Ext.P7 warns the wife of penal actions in case the order is not
complied with. It was in the above context that the wife approached this Court
praying for quashing Ext.P7 order, by invoking the power of this Court under
Article 227 of the Constitution of India.
3. We have heard the learned counsel for the petitioner. According to the learned
counsel for the petitioner, Ext.P7 order was passed by the Family Court
without conducting necessary enquiry and without hearing the wife. He also
claimed that the wife has not violated Ext.P4 order.
4. As per Ext.P4 order, the Family Court has granted custody of the minor child
only for one hour each on first and last Sundays between 3.00 to 4.00 pm.
During the entire remaining period, the child is in the custody of its mother.
The grievance of the father is that even during the said limited period, he was
not permitted to freely interact with the child. It was in the above context,
taking into consideration of all aspects including the counter affidavit filed by
the wife, that the Family Court Judge permitted the father of the child to
interact with the child freely during the said limited time.
5. The only modification made in Ext.P7 order is that it permitted the father to
take the child to the nearby park. We find absolutely no reason or justification
OP(FC).75 of 2024
for the wife to object to Ext.P7 order, which only permits the father to take
the child to the nearby park and directing her to comply Ext.P4 order. The
practice of approaching the High Court seeking invocation of jurisdiction
under Article 227 of the Constitution of India on such silly grounds,
especially in the case of custody of minor children, is unfortunate. There is
absolutely no merits or bona fides in this petition and it deserves to be
dismissed.
6. In this context it is also to be noted that the child is of 4 1/2 years at present.
Ext.P4 order was passed by the Family Court on 26.4.2022 when the child
was 21/2 years old. The child requires care, love and affection of both the
parents. Therefore, it is high time to give the father more time to interact with
the child. In case the father approaches the Family Court for enhancing the
time for interaction with the child, the same shall be considered liberally by
the Family court.
With the above observation, we dismiss this Original Petition.
Sd/-
Anu Sivaraman, Judge
Sd/-
C.Pratheep Kumar, Judge
Mrcs/6.2.2024
OP(FC).75 of 2024
APPENDIX OF OP (FC) 75/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE GOP NO.2799/2021 DATED
23/11/2021 OF THE FAMILY COURT, ERNAKULAM.
Exhibit P2 TRUE COPY OF THE I.A.NO.5938/2021 IN GOP
NO.2799/2021 DATED 23/11/2021 OF THE FAMILY
COURT, ERNAKULAM
Exhibit P3 TRUE COPY OF THE COUNTER AFFIDAVIT AGAINST
THE I.A.NO.5938/2021 IN GOP NO.2799/2021
DATED 5/3/2022 OF THE FAMILY COURT,
ERNAKULAM.
Exhibit P4 TRUE COPY OF THE ORDER DATED 26/4/2022 IN
I.A.NO. I.A.NO.5938/2021 IN GOP NO.2799/2021
DATED 23/11/2021 OF THE FAMILY COURT,
ERNAKULAM
Exhibit P5 TRUE COPY OF THE I.A.NO. 5 OF 2023 IN IN GOP
NO.2799/2021DATED 8/5/2023 OF THE FAMILY
COURT, ERNAKULAM
Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN
I.A.NO. 5 OF 2023 IN IN GOP NO.2799/2021
DATED 20/07/2023 OF THE FAMILY COURT,
ERNAKULAM.
Exhibit P7 TRUE COPY OF THE ORDER DATED 15/12/2023 IN
I.A.NO. 5 OF 2023 IN IN GOP NO.2799/2021
DATED 20/07/2023 OF THE FAMILY COURT,
ERNAKULAM
