Suresh Chamakuzhiyil vs Renuka.A
2024 Latest Caselaw 29388 Ker

Kerala High Court

Suresh Chamakuzhiyil vs Renuka.A on 17 October, 2024

Author: Devan Ramachandran

Bench: Devan Ramachandran

O.P.(FC)NO.398 OF 2024                           2024:KER:77488
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               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
                                   &
              THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
     THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
                         OP (FC) NO. 398 OF 2024
         AGAINST THE ORDER/JUDGMENT DATED 13.06.2024 IN OP NO.404 OF
                    2024 OF FAMILY COURT, OTTAPPALAM

PETITIONER:

            SURESH CHAMAKUZHIYIL, AGED 34 YEARS
            S/O UNNIKRISHNAN, CHAMAKUZHIYIL HOUSE, EDAYIKKAL,
            THACHAMPARA P.O., PALAKKAD, PIN - 678593

            BY ADVS. K.JAYESH MOHANKUMAR
            PUSHPARAJAN KODOTH
            VANDANA MENON
            VIMAL VIJAY


RESPONDENTS:

     1      RENUKA.A, AGED 26 YEARS
            D/O. VISWANATHAN.A, AMBALATH HOUSE, CHETHALLOOR POST,
            MANNARKKAD, PALAKKAD, PIN - 678583


            BY ADVS.M.JAYAKRISHNAN VAZHOOR
            V.JAYESH(K/354/2012)
            SHAJI MATHEW N.M.(K/359/2020)
            NITHYA V.D.(K/545/2024)


     THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON
17.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(FC)NO.398 OF 2024                                  2024:KER:77488
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                                  JUDGMENT

Devan Ramachandran, J.

The petitioner - father of two minor children, aged 1½ and 4

respectively, impugn Ext.P7 order of the learned Family Court, Ottappalam,

through which, their interim custody has been given to their mother - the

respondent herein.

2. Sri.Jayesh Mohankumar - learned counsel appearing for the

petitioner argued that, the findings of the learned Family Court are without

basis; and that the interest of the children will be best served with the father

since they have been with him for more than a month. He also made certain

allegations against the family background of the mother, particularly with

respect to her brother; and predicated that therefore, the learned Family

Court ought to have been more circumspect in having granted their interim

custody to the mother.

3. Sri.M.Jayakrishnan - learned counsel for the mother, however,

submitted that the Ext.P7 order has been issued as an interim arrangement in

O.P.No.404/2024 filed by his client - the mother of the children, seeking O.P.(FC)NO.398 OF 2024 2024:KER:77488

permanent custody, and that the matter is still pending. He prayed that, since

the learned Family Court has only made an interim arrangement and that too

taking into account the factum of the younger child being a mere 1½ years in

age, who required nursing at that time, Ext.P7 be not interdicted.

4. We have examined Ext.P7 on the touchstone of the afore rival

submissions.

5. We notice from the order assailed that the primary allegation of the

father against the mother is that she is not taking care of the children. There

is an added imputation that the mother assaults the elder child, which is then

sought to be fortified by a further submission before us that her brother also

sometimes does so.

6. This Court had interacted with the parties in extenso, to find the truth

of the matter, on several occasions. The first of such interaction was by

another learned Bench on the 4th of July 2024, on which day, sensing that

the parties may have a chance of reunion, they were referred to the Family

Counselling Centre attached to this Court.

7. Thereafter, we considered this matter and we thought there was a O.P.(FC)NO.398 OF 2024 2024:KER:77488

breakthrough between the parties; and therefore, passed an order on that day

to the following effect:

"The parties are before us personally with their children.

2. Today, when this matter was called in our Chambers at about 1.30 p.m., we found that the children are comfortable in the company of the petitioner and respondent, though the elder one had, initially, some issues in interacting with his mother. We, therefore, requested the parties to have lunch together along with the children; and we called this case at 4.20 p.m. in our chambers.

3. There appears to be some breakthrough because the petitioner submitted that he is willing to handover the elder son also to the respondent at her house on 26.7.2024 between 7 p.m. and 8 p.m. and that he will collect him back on 28.7.2024 at about 4 p.m. This is recorded.

4. As we have said above, we noticed a slight shift in the attitude of the parties and believe that, given time, they will possibly be able to resolve their internecine issues.

5. The learned counsel for the parties, therefore, sought that this matter be listed on 30.7.2024.

We, therefore, adjourn this matter to be called on 30.7.2024. On the said day, we will consider further orders."

8. On 30th July 2024, the arrangement as ordered in the afore extracted

order was allowed to continue, which was followed by a subsequent order on

the 12th of August, 2024 in the following manner:

"As per the request of both sides, we referred them to the Family Counselling Centre of this Court, today.

2. The learned Counsellor has furnished an interim report saying that the problems between the parties do not appear to be O.P.(FC)NO.398 OF 2024 2024:KER:77488

very grave, but that the involvement of their parents seem to create some issues between them. She has, therefore, suggested that there should be a "follow-up session with their parents and the parties".

3. The parties were thereafter present before us in person and they both agree that their parents will be present for the next counselling session on 19.08.2024.

List, therefore, on 19.08.2024."

9. We, thereafter, obtained a report dated 11.9.24 from the Family

Counsellor, stating that the children require love of both parents, but that the

reconciliation of the doctor does not appear to be possible.

10. We then directed the father to handover the children to the mother ,

followed by another order on the 24th September 2024 in the following

manner:

"We are told that the children are still with the mother comfortably, though they are suffering from a seasonal flu, or such other minor indisposition.

2. Sri.Jayesh Mohankumar - learned counsel for the petitioner, sought that the children be returned to his client immediately because, the school of the elder among them has commenced. We, however, are of the view that the children should be given a week's more time, so that they can be in better health.

3. In the interregnum, we permit the petitioner - father to talk to the children on video conferencing/voice/video call every day between 7 and 8 PM at the phone number of the respondent - wife (8157963401). We also permit the petitioner to meet the children at the residence of the respondent; for which, she has undertaken - through her learned counsel - that she will facilitate.

Post on 30.09.2024."

11. It is in such scenario that we have considered this matter today;

O.P.(FC)NO.398 OF 2024 2024:KER:77488

and there are allegations made by the parties against each other that they did

not comply with the afore directions of this Court.

12. Be that as it may, today the parties were again present before us

with the children.

13. The children appeared to be comfortable with the parents

individually and together. Since the parties were ad idem that they cannot

reunite, it is obvious that we must think about an interim arrangement for the

children, until such time as the learned Family Court is able to dispose of

O.P.No.404/2024.

14. The learned counsel for the parties then suggested that the

children be allowed to have the benefit of both parents; and the mother

thereupon said that she has already obtained admission for the elder child at

NNNMVP School, Chethallur, Palakkad, handing over a copy of the letter

from the said School confirming such.

15. The learned counsel for the petitioner - father, agreed that if he is

given minimum sufficient interim custodial rights of the children, he will abide

by any direction issued by this Court, including that the mother can be in their

charge during the weekdays. He suggested that the children be given to his O.P.(FC)NO.398 OF 2024 2024:KER:77488

client - the father, at 5 p.m. on Friday after school hours, to be returned to the

mother on 5 p.m. on the next Sunday, every week.

16. Sri.M.Jayakrishnan - learned counsel appearing for the mother, did

not oppose the afore suggestion; but prayed that this be made subject to

further orders to be issued by the learned Family Court in O.P.No.404/2024.

17. In the afore circumstances, with the consent of both sides, we

confirm Ext.P7 to the extent it orders that the mother will be in interim custody

of the children; but modifying it to the extent that the father will be entitled to

their custody from 5 p.m. every Friday, till 5 p.m. the ensuing Sunday of every

week. The place of exchange, as agreed by the parties, shall be the front

gate of the mother's residence. We record the submission made on behalf of

the respondent - mother that she will not cause any impediment to this; and

that her brother or other family members will fully facilitate it.

18. Though we have ordered as above, taking into account the factum

of the children having been with the mother for the last more than a month

uninterruptedly, we record that the mother has permitted the father to take

their interim custody from this Court; and that he has undertaken to return O.P.(FC)NO.398 OF 2024 2024:KER:77488

them to the mother's house at 5 p.m. on 20.10.2024.

19. Needless to say, the Family Court will now dispose of Original

Petition as per law, affording necessary opportunity to both sides and after

interacting with the parties and children as is necessary; to culminate in

necessary orders, however, without being in any manner trammelled by any

of our observations in this judgment.

We also order that the mother will ensure that the elder child is admitted

in the aforementioned school and the evidence to the same shall be present

before the learned Family Court within a period of two weeks from the date of

receipt of a copy of this judgment.

sd/-

DEVAN RAMACHANDRAN JUDGE

sd/-

                                                M.B. SNEHALATHA
                                                      JUDGE
jes
 O.P.(FC)NO.398 OF 2024                            2024:KER:77488



                     APPENDIX OF O.P.(FC)398/2024

PETITIONER'S EXHIBITS:

Exhibit P1    TRUE COPY OF THE MEDICAL REPORT ISSUED BY THE DOCTOR
              ON 15.02.2024

Exhibit P2    TRUE COPY OF THE MEDICAL REPORT ISSUED BY THE DOCTOR
              ON 15.02.2024

Exhibit P3    A TRUE COPY OF THE PETITION O.P. NO. 164/2024 ON THE

FILE OF THE FAMILY COURT, OTTAPALAM DATED 17.02.2024

Exhibit P4 A TRUE COPY OF THE CMP NO. 1474/2024 FILED UNDER SECTION 190 OF THE CRIMINAL PROCEDURE CODE BEFORE THE CHILDREN'S COURT, PALAKKAD DATED 24.05.2024

Exhibit P5 A TRUE COPY OF THE I.A. NO. 2/2024 IN O.P. NO.

404/2024 ON THE FILE OF FAMILY COURT, OTTAPALAM DATED 29.04.2024

Exhibit P6 A TRUE COPY OF THE COUNTER IN I.A. NO. 2/2024 IN O.P. NO. 404/2024 ON THE FILE OF FAMILY COURT, OTTAPALAM DATED 11.06.2024

Exhibit P7 A TRUE COPY OF THE ORDER DATED 13.06.2024 ON THE FILE OF THE FAMILY COURT, OTTAPALAM IN I.A.NO.2/2024 IN OP

Exhibit P8 A TRUE COPY OF THE I.A.5/2024 IN OP 404/2024 DATED 14/06/2024

Exhibit P9 PHOTOGRAPHS SHOWING THE MARK ON THE LEG OF THE CHILD DATED NIL

Exhibit P10 A TRUE COPY OF THE ACKNOWLEDGEMENT DATED 27.09.2024 ISSUED BY THE 2ND ADDTL RESPONDENT

// True copy//

P.A. to Judge