Kerala High Court
Diana Paul vs Nithin Jose on 15 November, 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 15TH DAY OF NOVEMBER 2024 / 24TH KARTHIKA, 1946
OP (FC) NO. 94 OF 2024
AGAINST THE JUDGMENT DATED 11.01.2024 IN IA 2/2023 IN OP
NO.2496 OF 2023 OF FAMILY COURT,ERNAKULAM
PETITIONER/RESPONDENT:
DIANA PAUL, AGED 36 YEARS
THATTIL HOUSE, POTTAMAL, NELLICODE. P.O., KOZHIKODE,
PIN:673 016, NOW WORKING IN ERNST AND YOUNG, INFO PARK
ROAD, KUSUMAGIRI, INFO PARK CAMPUS, KAKKANAD, PIN-
682030 PRESENTLY RESIDING AT CORNELL-2B, SKYLINE IVY
LEAGUE, EDACHIRA, KAKKANAD, ERNAKULAM DT.
BY ADV K.V.BHADRA KUMARI
RESPONDENT/PETITIONER:
NITHIN JOSE, AGED 42 YEARS
ALAMPARAMPIL, PHRA 35, PHILIPS HILL, POTHUJANAM,
KUMARAPURAM, TRIVANDRUM, MEDICAL COLLEGE. P.O.,
THIRUVANANTHAPURAM, PIN - 695011
V.K.BALACHANDRAN
AMRUTHA P.S.(K/1817/2020)
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
15.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP (FC) NO. 94 OF 2024
2
JUDGMENT
Devan Ramachandran, J.
The petitioner challenges Ext.P4 order of the learned
Family Court, Ernakulam, in I.A.No.2/2023 in OP No.2496/2023,
solely on the ground that her minor children are refusing to go
with their father; and therefore, that she is unable to comply with
the directions therein.
2. We notice from the file that another learned Bench of
this Court had heard this matter on 28.06.2024, and the following
order was issued:
"We have heard Smt.Bhadra Kumari, the
learned counsel appearing for the petitioner and
Sri.V.K.Balachandran, the learned counsel appearing for
the respondent.
2. This order shall be read in continuation to
our previous order dated 9.4.2024.
3. The report of the Psychologist has been
placed before us. It is submitted across the bar that a
petition seeking dissolution of marriage has been filed by
the respondent and the same is pending before the
Family Court.
4. The learned counsel appearing for both sides
submitted before us that the parties want to part ways
after settling all disputes and request that the parties be
referred to mediation.
5. In that view of the matter, the parties shall
appear before the Kerala High Court Mediation Centre
on 04.07.2024 at 10.15 am.
6. For the time being, the order passed by the
Family Court insofar as the two minor boys are
concerned shall continue. The father shall be granted
interim custody of the minor boys from 5 p.m. on every
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second Friday till 5 p.m. on the ensuing Sunday. He shall
also be permitted to have day custody of the daughter
from 10 am. to 4 p.m. on the second Saturday. Post on
09.08.2024 along with the mediation report."
3. Thereafter, this matter came before us and we
recorded the consent of the parties that the children will be with
the father from 5 p.m. on 13.09.2024 till 5 p.m. on 16.09.2024.
But, as regards the elder daughter, since she was unwilling to go
with her father on an overnight arrangement, she was directed to
be with him from 10 a.m. till 5 p.m. on 16.09.2024.
4. When this matter was subsequently considered by us,
a request was made that we interact with the children again,
because their desires are paramount.
5. Today, the parties, as also the children, were present
personally and we interacted with them.
6. The elder daughter is 14 years old and extremely
articulate. She told us that she does not want to be with the
father in an overnight arrangement; though our suggestion, that
she meet him once in a while, was not resisted. The younger twin
boys of 7 years seemed undecided, with one of them, however,
showing greater reluctance to be in the presence of the father.
7. We have examined the order impugned and we notice
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that the learned Judge had made the arrangement therein, after
meeting the children.
8. Interestingly, the respondent - mother told us that she
has no objection to the children spending time with the father,
even on overnight arrangement, or perhaps even longer; but that
her only problem is that they are unwilling and seem to be under
a lot of pressure when pushed to do so.
9. The mother's submissions certainly carry weight
because, we cannot force the children to do something which they
do not approve of; and certainly, we do not propose to cause them
any trauma.
10. However, looking at the impugned order, it is evident
that the father has been allowed to be in the custody of the
children from 5 p.m. on every second Friday, till 5 p.m. on the
ensuing Sunday, as also for the first half of Onam and Christmas
vacations and the first ten days of April and May during summer
vacations as per the school calendar. This can be only
interpreted to mean that such visitation and custody will be
subject to the desire and the consent of the children. If the
children are refusing to go with the father for any reason, we
cannot blame the mother.
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11. However, we are without doubt that the children
require the company of both the parents; and cannot deprive the
father of what has already been offered to him.
12. In such circumstances and with the clarification
above, we dismiss this Original Petition, confirming Ext.P4 order
of the learned Family Court, Ernakulam.
However, we leave liberty to the parties to move the
learned Family Court, or even this Court, for any clarification, if it
becomes warranted in future, particularly with respect to the
manner in which Ext.P4 is to be complied with; for which
purpose, all rival contentions are left open.
Sd/- DEVAN RAMACHANDRAN
JUDGE
Sd/- M.B. SNEHALATHA
JUDGE
stu
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OP (FC) NO. 94 OF 2024
APPENDIX OF OP (FC) 94/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PETITION, O.P NO:
2496/2023 FILED BY THE RESPONDENT AND HIS
PARENTS BEFORE THE FAMILY COURT, ERNAKULAM
DATED 14/11/2023
Exhibit P2 TRUE COPY OF THE PETITION FILED BY THE
RESPONDENT AS I.A NO: 2/2023 IN O.P
NO:2496/2023 BEFORE THE FAMILY COURT,
ERNAKULAM DATED 14/11/2023
Exhibit P3 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER IN I.A NO: 2/2023 IN O.P
NO:2496/2023 DATED 27/12/2023
Exhibit P4 CERTIFIED COPY OF THE ORDER PASSED IN I.A
NO: 2/2023 IN O.PNO:2496/2023 BY THE FAMILY
COURT, ERNAKULAM DATED 11/1/2023
