Kerala High Court
Premdas Thirumala vs Lakshmi Somasekharan on 30 October, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
2024:KER:80877
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA,
1946
MAT.APPEAL NO. 422 OF 2024
GOP NO.2161 OF 2018,FAMILY COURT, THRISSUR
APPELLANT/PETITIONER:
PREMDAS THIRUMALA, AGED 44 YEARS
S/O. RAJA KESAVADAS, GOVIND, 39/1201,
ROBINSON ROAD, PALAKKAD III VILLAGE,
PALAKKAD P.O., PALAKKAD DESOM, PALAKKAD TALUK,
PALAKKAD DISTRICT, PIN - 678014.
BY ADV P.K.SAJEEV
RESPONDENT/RESPONDENT:
LAKSHMI SOMASEKHARAN, AGED 38 YEARS,
D/O. SOMASEKHARAN, FLAT NO. C-6,
SIVAGANGA APARTMENT, NEAR VADAKKECHIRA,
CHEMBUKKAVU VILLAGE, DESOM, CHEMBUKKAVU P.O.,
THRISSUR TALUK, THRISSUR DISTRICT - 680 020.,
PIN - 680020.
THIS MATRIMONIAL APPEAL HAVING COME UP FOR
ADMISSION ON 30.10.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2024:KER:80877
MAT.APPEAL NO. 422 OF 2024
-2-
JUDGMENT
Devan Ramachandran, J.
This Appeal assails the judgment of the
learned Family Court, Thrissur, in GOP
No.2161/2018, which has been disposed of, along
with two other matters between the same parties.
2. The aforementioned GOP was filed by
the appellant, who is the father of a 12 year
old child, seeking his permanent custody; but,
it has been dismissed by the learned Family
Court, finding that the child is not comfortable
with him, thus offering him only visitation
rights during certain days.
3. The appellant challenges the above
order of the learned Family Court, contending
that it has not taken into account the best
2024:KER:80877
MAT.APPEAL NO. 422 OF 2024
interest of the child; and that his wishes or
desires never adverted to.
4. The afore submissions of Sri.Sajeev
P.K. - learned counsel for the appellant,
however, were vehemently opposed by
Sri.M.Premchand - learned counsel for the
respondent, asserting that the appellant has not
seen the child until now; and that, therefore,
the latter has no emotional bond with him. He
contended that the argument of Sri.Sajeev P.K.,
that the learned Family Court did not interact
with the child, is without factual basis
because, as evident from the judgment itself, it
is recorded that such was done; and that the
child had made it clear that he wanted to
continue to live with his mother. He thus prayed
that this Appeal be dismissed, arguing that it
2024:KER:80877
MAT.APPEAL NO. 422 OF 2024
is experimental, since the child was not even
willing to interact properly with the appellant
for afore stated reason, much less live with him
under an overnight custody arrangement.
5. We have examined the judgment in
question, as also the evidence on record.
6. The appellant has examined himself
as RW1; while the respondent has offered
testimony as PW1.
7. The depositions of the witnesses
have been made available to us across the Bar by
the learned counsel for the parties, as also the
exhibits. We record the submissions of both
sides that this Court can dispose of the matter
based on the same, since they are uncontested.
8. When we examine the testimony of
the witnesses, it is luculent that most of it
2024:KER:80877
MAT.APPEAL NO. 422 OF 2024
relates to their other claims against each
other, including the return of gold ornaments,
fiscal demands, and such other.
9. The specific testimony of the
father, qua custody, is that it is necessary for
the child to have his company for his mental and
physical development; and that the respondent -
mother is not in a position to look after him,
because there is no one else with her.
10. However, in refutation, the mother
specifically says that the father has not even
bothered to see the child for a long time and
that their interaction has only been on very few
occasions for the last 12 years. She has
testified that, after March 2020, the appellant
has not seen the child at all, nor has he taken
any steps to meet him even at 'Paramekkavu Vidya
2024:KER:80877
MAT.APPEAL NO. 422 OF 2024
Mandir School' - where he is presently studying.
11. In fact, this is more or less
conceded by RW1, the appellant herein, who
conceded that he had not seen the child after
14.09.2014 - when he was merely 7 years in age;
and, on such basis, that the learned Family
Court has entered into the finding that the
emotional bond between the father and son has
not developed.
12. After inditing as afore, the
learned Family Court is recorded to have
interacted with the child, and the latter
reported to have made it clear that he wants to
continue with his mother. The Court thereupon
entered a finding that the mother and the child
are doing well, both financially and otherwise;
and that she is supported by her parents and
2024:KER:80877
MAT.APPEAL NO. 422 OF 2024
therefore, that she would be the best person to
be in charge of the latter.
13. However, the learned Court has
reserved certain visitation rights over the
child for the appellant on every second and
fourth Sunday, as also on certain days like
Onam, Christmas, Deepavali and Vishu.
14. We are certain that no error has
been committed by the learned Family Court
because it is well settled and, as is conceded
by both sides, that it is the welfare and
benefit to the child which is paramount. The
child is not very young - being 12 years old
now; and he certainly is in a position to
articulate what he wants very effectively. This,
he appears to have done, and the learned Family
Court has recorded that he wants to be with his
2024:KER:80877
MAT.APPEAL NO. 422 OF 2024
mother.
15. Of course, the relationship between
the father and son certainly may improve over
time; and we are not in a position to say that
the present status quo will not change. Perhaps
it is possible, in future, that the child may
develop longing to be with the father; and this
most probably can develop only through the
frequent interactions that have been reserved in
his favour by the learned Court.
16. That being said, if the father
requires any further custody of the child,
including overnight, or for an extension of the
duration of the visitation - as has now been
requested by Sri.P.K.Sajeev on his behalf -
surely he can move the learned Family Court
appropriately because, it is settled law,
2024:KER:80877
MAT.APPEAL NO. 422 OF 2024
without requirement of restatement, that every
order of custody is essentially interlocutory in
nature. We do not find any reason why the
appellant - father should not obtain such an
opportunity, if the circumstances so enable him
to do.
17. As far as the position, as of now
is concerned, the child appears to be unwilling
to go with the father, except under the
visitation arrangement; and obviously,
therefore, it is for the latter to move the
learned Family Court, when circumstances change
in future.
With the afore liberty being reserved to
the appellant - father, we close this Appeal,
since we find no reason to intervene with the
arrangement that has now been made by the
2024:KER:80877
MAT.APPEAL NO. 422 OF 2024
learned Family Court.
Needless to say, if the father is to move
the learned Family Court - which we believe
would appropriate after a minimum period of
five months from now - pointing out the change
in circumstances, surely, the said Court will
consider the same in its proper perspective,
without being in any manner fettered by our
observations in this judgment.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
akv JUDGE
