Kerala High Court

Dhilna K.M vs Sanoob B on 17 October, 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

    THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946

                       OP (FC) NO. 557 OF 2024

     AGAINST THE ORDER IN I.A.2/2024 IN GOP NO.1094 OF 2024 OF

FAMILY COURT,ERNAKULAM

PETITIONER/RESPONDENT:

            DHILNA K.M.
            AGED 34 YEARS
            W/O SANOOB B. PUSHYARAG, CN 127, ANGAMALY P.O.,
            ERNAKULAM, KERALA -683572, WORKING AS MANAGER, SOUTH
            INDIAN BANK, WHOLESALE BANKING CREDIT PROCESSING
            CENTRE, SHANU TOWER, NH-47, KALAMASSERY, ERNAKULAM.,
            PIN - 683104


            BY ADVS.
            MATHEWS K.PHILIP
            T.MANASY
            MINISHA K DAS


RESPONDENT/PETITIONER:

            SANOOB B
            AGED 39 YEARS
            S/O S. BALAKRISHNAN, PUTHALATH, S.N. ROAD, EDAPPALLY
            P.O., ERNAKULAM., PIN - 682024


            BY ADV SYAMA MOHAN




     THIS   OP   (FAMILY   COURT)   HAVING   BEEN   FINALLY   HEARD   ON
17.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                            2024:KER:77959
OP (FC) NO. 557 OF 2024
                                  2

                            JUDGMENT

Even though various allegations,

averments and assertions have been made by

the petitioner, against Ext.P5 order of the

learned Family Court, Ernakulam, the fact

remains that most of them are in the factual

realm.

2. Sri.Mathews K.Philip - learned

counsel for the petitioner, argued that the

findings in Ext.P5 are incorrect; and hence

that this is a matter where this Court is

enjoined to intervene.

3. However, in refutation, Smt.Shyama

Mohan - learned counsel for the respondent,

argued that her client is justifiably

apprehensive about the manner in which the

children are being brought up by their

mother - the petitioner herein, particularly 2024:KER:77959 OP (FC) NO. 557 OF 2024

when it is on record that she did not

provide proper schooling for the elder of

them and denied treatment and prophylactic

intervention through vaccinations, as are

scientifically proven. She predicated that

the plight of the father in such situation

cannot be lost sight of because, he

genuinely believes that his children are

facing harm.

4. We choose not to speak on the

rival contentions in detail because, after

arguing this matter for some time, both

learned counsel agreed that, since the

germane issues are edificed on certain

factual inputs, the learned Family Court may

be directed to reconsider the entire matter,

based on materials and documents to be

produced by them. However, Smt.Shyama Mohan 2024:KER:77959 OP (FC) NO. 557 OF 2024

reiterated that her client's apprehension,

regarding the medical condition of the

children, is acme and prayed that it be

ordered to be considered by the learned

Family Court properly and evaluated by it

through cogent means.

5. We have no doubt that, if the

allegations as impelled by the father are

true, then he was justified in seeking their

custody. We cannot blame him for harbouring

fear because, Ext.R1(b) report - settled by

a competent officer perhaps, as per his

request or application - certainly was one

that ought to have obtained the attention of

the learned Family Court also.

6. That said, we deem it also

necessary to record the submissions of

Sri.Mathews K.Philip that the situation, as 2024:KER:77959 OP (FC) NO. 557 OF 2024

recorded in Ext.R1(b), is not accurate; and

that the children are now going to a

recognized school and have been given all

vaccinations and treatment, as required

under the accepted medical protocol.

7. As we have said above, the afore

rival positions are squarely edificed on

factual matrix and assertions, which can

only be decided by the learned Family Court,

at the first instances. It would now be

justified us to speak on these issues at all

now because, it will require assessment and

evaluation of materials and documents

produced and sought to be produced by the

parties.

8. We record that both sides have

agreed that the impugned order can be set

aside and that the interim arrangement 2024:KER:77959 OP (FC) NO. 557 OF 2024

granted by this Court subject to a small

modification as we presently will make - be

allowed to continue, so that the learned

Family Court can be directed to reconsider

I.A.No.2/2024, adverting to all relevant and

germane aspects.

9. Before moving forward, the

interim arrangement that this Court had made

is available in the order dated 12.09.2024,

which is under:

"Both parties appear before us with the children. We notice that the children are very happy with each other and prima facie cannot find any reason to separate them.

                     The    learned       counsel          for     the
          petitioner        -     Sri.Mathews         K.         Philip

submitted that the children have been fully vaccinated; and that the apprehension of the respondent- father to the contrary is misplaced.

We, therefore, stay Ext.P5 order of the learned Family Court for the time 2024:KER:77959 OP (FC) NO. 557 OF 2024

being; and consequently, allow both the children to be in custody of mother for the time being particularly because the parties say that they will try settlement out of Court, even under the facilitation of the Family Counselling Centre of this Court. They offer to be present before us for this purpose, without the children, on the next posting date.

Post on 26/09/2024.

10. In fact, we had also asked the

parties to go for counselling, which they

have attended; but the report of the

counsellor indicates that there are still

differences between them.

11. Obviously, therefore, during the

interregnum when the learned Family Court

decides the matter again, the father must

also have visitation/interim custody rights

over the children. This is paramount for

their welfare because, when we interacted

with them, they did not show any specific 2024:KER:77959 OP (FC) NO. 557 OF 2024

preference to the parents, but have

affection to both of them.

In the afore circumstances, with the

consent of both sides, we dispose of this

Original Petition in the following manner:

a) The impugned order - Ext.P5, will

stand set aside; with a consequential

direction to the learned Family Court,

Ernakulam, to reconsider I.A.No.2/2024 in

GOP No.1094/2024, after affording necessary

opportunities to both sides to produce

additional documents, if any. A final order

in this regard shall be endevoured to be

issued not later than two months.

b) For the afore purpose, we direct

the parties to mark appearance before the

learned Family Court, Eranakulam, at 11 A.M

on 24.10.2024; and the time frame afore 2024:KER:77959 OP (FC) NO. 557 OF 2024

fixed will start from that date.

c) Until the learned Family Court

takes a decision as afore, the interim order

afore extracted will continue to be in

force, however, with the modification that

the children shall be with the father from

10 A.M every Saturday, till 5 P.M the

ensuing Sunday. The place of exchange of the

children shall be the front gate of the

residence of the mother.

Sd/-

DEVAN RAMACHANDRAN JUDGE

Sd/-

M.B. SNEHALATHA JUDGE SAS 2024:KER:77959 OP (FC) NO. 557 OF 2024

APPENDIX OF OP (FC) 557/2024

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE GOP 1094/2024 ON THE FILE OF FAMILY COURT ERNAKULAM

Exhibit P2 TRUE COPY OF THE IA 2/2024 IN GOP 1094/2024 ON THE FILE FAMILY COURT ERNAKULAM

Exhibit P3 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN GOP 1094/2024 WITH DOCUMENTS

Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT IN IA 2 /2024 IN GOP 1094/2024 ON THE FILE OF FAMILY COURT ERNAKULAM

Exhibit P5 TRUE COPY OF THE ORDER DATED 31.07.2024 IN IA 2/2024 IN GOP 1094/2024 ON THE FILE OF FAMILY COURT ERNAKULAM.

RESPONDENT'S EXHIBITS