Kerala High Court
Jiju N vs Aarya Rajendran on 30 October, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
2024:KER:81980
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
OP (FC) NO. 481 OF 2024
AGAINST THE ORDER DATED 05.06.2024 IN I.A.NO.3/2024 IN OP
NO.525 OF 2024 OF FAMILY COURT, MALAPPURAM
PETITIONER/RESPONDENT IN IA NO.3/2024/PETITIONER IN OP
525/2024:
JIJU N, AGED 40 YEARS, S/O CHOZHI, RESIDING
AT NOONAMPARA HOUSE, IRINGATTIRI P.O, CHERMB
DESOM, KARUVARAKUND VILLAGE AND AMSOM,
NILAMBUR TALUK,MALAPPURAM -, PIN - 676523
BY ADVS.
SHARAN SHAHIER
RAKHY BABY
TREESA SHAJI
SNEHA JOY
NISHAN AHAMMED MULLAVEETTIL
RESPONDENTS/PETITIONERS IN IA 3/2024/RESPONDENT IN OP
525/2024:
1 AARYA RAJENDRAN, D/O RAJENDRAN, THOPPIL
HOUSE, PATHAYIKKARA POST, VILLAGE AND AMSOM,
PERINTHALMANNA TALUK, MALAPPURAM, PIN - 679322
2 RAJENDREN, S/O KESVAN, THOPPIL HOUSE PATHAYIKKARA
VILLAGE AND AMSOM, PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT, PIN - 679322
BY ADVS.
SAMSUDIN PANOLAN .
JASNEED JAMAL(K/1383/2018)
LIRA A.B.(K/001251/2021)
DEVIKA E.D.(K/1132/2024)
2024:KER:81980
OP(FC) 481/2024 & 631/2024
2
ABIN RASHID(K/002131/2024)
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
30.10.2024, ALONG WITH OP (FC)NO.631/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
2024:KER:81980
OP(FC) 481/2024 & 631/2024
3
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
OP (FC) NO. 631 OF 2024
AGAINST THE ORDER DATED 05.06.2024 IN I.A.NO.3/2024 IN OPGW
NO.525 OF 2024 OF FAMILY COURT, MALAPPURAM
PETITIONERS/PETITIONERS IN IA 3/2024/RESPONDENTS IN
OP(G&W)525/2024:
1 ARYA RAJENDRAN, AGED 33 YEARS
D/O T.K. RAJENDRAN, THOPPIL HOUSE,
PATHAYIKKARA POST, PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT.(NOW WORKING IN UNITED
KINGDOM AND RESIDES AT 19 COBDEN ROAD,
WREXHAM, LL13 7TH, UNITED KINGDOM,
REPRESENTED BY POWER OF ATTORNEY HOLDER
T.K. RAJENDRAN, S/O KESVAN, THOPPIL HOUSE,
PATHAYIKKARA, PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT), PIN - 679322
2 T.K.RAJENDRAN, AGED 56 YEARS, S/O KESVAN,
THOPPIL HOUSE, PATHAYIKKARA VILLAGE
PERINTHALMANNA TALUK, MALAPPURAM DISTRICT,
PIN - 679322
BY ADVS.
P.SAMSUDIN
JASNEED JAMAL
LIRA A.B.
DEVIKA E.D.
ABIN RASHID
2024:KER:81980
OP(FC) 481/2024 & 631/2024
4
RESPONDENT/RESPONDENT IN IA 3/2024/PETITIONER IN
OP(G&W)525/2024:
JIJU. N., AGED 40 YEARS, S/O CHOZHL,
NOONAMPARA HOUSE, IRINGTRI PO, CHERMB
DESOM, KARUVARAKUND VILLAGE, NILAMBUR
TALUK, MALAPPURAM DISTRICT, PIN - 676523
BY ADV SHARAN SHAHIER
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
30.10.2024, ALONG WITH OP (FC)NO.481/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
2024:KER:81980
OP(FC) 481/2024 & 631/2024
5
JUDGMENT
[OP (FC) Nos.481/2024, 631/2024]
Devan Ramachandran, J.
We are considering these Original Petitions together since
they involve analogous issues and are between the same parties.
2. O.P.(FC)No.481/2024 has been filed by Sri.Jiju N., who
is the husband of the respondent-Smt.Arya Rajendran Rajendran;
while, O.P.(FC)No.631/2024 has been filed by the latter against the
former.
3. It is stated that there are matrimonial issues between
Sri.Jiju N. and Smt.Arya Rajendran Rajendran; and that the latter
is now in the United Kingdom, employed as a Nurse.
4. Among the several issues, the pertinent question is, who
among the parties is to be in custody of their minor child.
5. It transpires that Sri.Jiju has filed O.P.No.525/2024
before the learned Family Court, Malappuram, on the assertion
that he is in physical custody of his child and has sought an order
2024:KER:81980
OP(FC) 481/2024 & 631/2024
of interim injunction against Smt.Arya Rajendran and her parents,
from forcibly taking her away from him.
6. Interestingly, along with afore said Original Petition,
Sri.Jiju has filed I.A.No.2/2024 seeking a temporary injunction;
while Smt.Arya has filed I.A.No.3/2024, seeking custody of the
child. These applications were heard together and the impugned
order, namely that dated 05.06.2024 (produced as Ext.P8 along
with O.P.(FC)No.481/2024 and as Ext.P7 O.P.(FC)No.631/2024), has
been issued by the learned Family Court. Through the said order,
the application for interim injunction filed by Sri.Jiju has been
dismissed; while, the child has been given interim custody to her
maternal grandparents, with visitation rights being allowed in his
favour.
7. Sri.Jiju challenges the afore order to the extent to
which the child has been given custody to her maternal
grandparents; while, Smt.Arya Rajendran challenges it to the
extent to which it has denied absolute custody of the child to her,
2024:KER:81980
OP(FC) 481/2024 & 631/2024
thus incapacitating her to be taken to the U.K.
8. Though we have heard Sri.Sharan Shahier - learned
counsel for Sri.Jiju and Sri.Samsudin Panolan - learned counsel for
Smt.Arya and her father, in great detail, there is a very pertinent
fact, which is that O.P.No.525/2024, which is not one filed under
the Guardians and Wards Act, seeking custody of the child, but
one in which - as we have said above - Sri.Jiju has sought a
permanent injunction against Smt.Arya Rajendran from taking her
away from him. We cannot understand how the order impugned
has been issued by the learned Family Court seemingly construing
the proceedings to be one for custody, which it was not.
9. Interestingly, by the impugned order, O.P.No.525/2024
has been virtually rendered redundant because, the child has been
given custody to the maternal grandparents; and we fail to
understand what more can be done in the said Original Petition
because, all that has been sought for, is an injunction against
Smt.Arya Rajendran from taking her away from Sri.Jiju using
2024:KER:81980
OP(FC) 481/2024 & 631/2024
force.
10. Right or wrong, the child is now with the maternal
grandparents under the orders of the learned Family Court.
11. Today, Sri.Sharan Shahier - learned counsel for Sri.Jiju,
requested that the child be ordered to be given back to his client
because, she also wants to be with him; while, Sri.Samsudin
Panolan - on behalf of Smt.Arya Rajendran, requested that his
client be allowed to take the child to U.K. and that orders be
issued to facilitate the same.
12. As we have already indicated above, we fail to
understand how these requests have been made before us on the
underpinning of an Original Petition which is not for custody of
the child.
13. That said, we had interacted with the child earlier,
when she was produced before us on 29.08.2024. Our opinion
gathered on that day has been indited in the order of the said
day, which is as under:
2024:KER:81980
OP(FC) 481/2024 & 631/2024
The minor child of the couple, Thapasaya, was before us
and we interacted with her.
Thapasaya told us that she has equal affection for the
parents; and that she is presently living with her mother, who
is now in India, along with the parents. She, however,
expressed desire to go to the father and even to relocate her
school during such process; but clearly expressing that this is
not because she does not want to be with her mother either.
Obviously, the parents must first find a solution before
we are called upon to do so. Both the parties were also before
us and they sought ten days' time; with the wife informing us
that she proposes to leave abroad only after two weeks.
Post on 10/09/2024.
14. The child was again brought before us today by her
maternal grandparents and Sri.Jiju was also present in person. We
had a further interaction with the child who came across as being
sad and distressed this time, presumably because she is being
called into Court for no reason that she can comprehend.
15. We are equally or more distressed seeing the child like
this; and we do not know how long she will have to bear this
torment, because her parents are still fighting each other.
16. Be that as it may, we cannot find any purpose to be
served with O.P.No.525/2024 being prosecuted before the learned
Family Court, Malappuram, because, even if it is to be finally
2024:KER:81980
OP(FC) 481/2024 & 631/2024
allowed, the only order Sri.Jiju can hope for is an injunction
restraining Smt.Arya Rajendran from taking away the child
forcibly, which is now unnecessary since she is, concededly, with
her maternal grandparents, under the orders of Court.
17. Sensing the mind of this Court as afore, Sri.Sharan
Shahier submitted that his client intends to file an application for
custody of the child before the learned Family Court and that
O.P.No.525/2024 will be withdrawn to facilitate such. He,
however, prayed that, in order to enable his client to invoke
remedies as are available to him in law, this Court may direct
Smt.Arya Rajendran and her parents not to take the child away
from India in the interregnum.
18. Sri.Samsudin Panolan - learned counsel for Smt.Arya
Rajendran, in response, submitted that the child is studying in a
school at Pathayikkara and that her mother intends to take her
along with her to U.K., because she has all facilities there,
including for stay and studies. He, however, conceded that this is
2024:KER:81980
OP(FC) 481/2024 & 631/2024
not an issue that this Court can decide, or order, at the first
instance; but argued that it would not be necessary because there
are no interdictory orders against his client from doing so.
19. There is some force in the afore submissions of
Sri.Samsudin Panolan, but we have to ensure that the rival
interests of the parties are sufficiently protected and that the
available remedies to them are not frustrated. The parties surely
have the right to invoke the jurisdiction of the learned Family
Court seeking custody of the child, if it becomes so warranted;
and we cannot interdict it in any manner. We are also not called
upon to decide the merits of any contention that they may impel
in such regard, since it is impermissible for us at this stage.
20. Therefore, we propose to direct the parties to maintain
status quo with respect to the child for a period of two months,
so as to enable them to move the learned Family Court
appropriately. Further arrangement with respect to the child will
depend upon the decision to be taken by the learned Family Court
2024:KER:81980
OP(FC) 481/2024 & 631/2024
within the afore time; and we clarify that it will be at full
discretion to make any order that it may deem fit, without being
trammeled by any of our observations.
Resultantly and with the consent of both sides, we dispose of
these Original Petitions, directing the parties to act and confine
themselves as per the impugned order of the learned Family Court
in I.A.No.3/2024 in O.P.No.525/2024, for a period of two months
from the date of receipt of a copy of this judgment.
We also leave liberty to the parties to approach the learned
Family Court, invoking any other remedy that may be available to
them in law and it shall be dealt with by it in the manner as we
have already said above.
After we dictated this part of the judgment, both sides
agreed that the exchange of the child for the afore purpose, will
be the front gate of the residence of Smt.Arya Rajendran.
We clarify that after the afore fixed period of two months,
the impugned order will seize to have effect; and the parties will,
2024:KER:81980
OP(FC) 481/2024 & 631/2024
thereupon, be governed by any orders to be issued by the learned
Family Court.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
JUDGE
RR
2024:KER:81980
OP(FC) 481/2024 & 631/2024
APPENDIX OF OP (FC) 631/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE MEMORANDUM IN OP (G&W)
525/2024 OF FAMILY COURT MALAPPURAM.
Exhibit P2 TRUE COPY OF WRITTEN STATEMENT AND
COUNTER CLAIM FILED BY THE RESPONDENTS IN
OP (G&W) 525 OF 2024 ON THE FILES OF
FAMILY COURT MALAPPURAM.
Exhibit P3 TRUE COPY OF THE IA 2/2024 IN OP (G&W)
525/2024 ON THE FILE OF FAMILY COURT,
MALAPPURAM
Exhibit P4 TRUE COPY OF THE COUNTER IN IA 2/2024 IN
OP (G&W) 525/2024 ON THE FILE OF FAMILY
COURT, MALAPPURAM WITHOUT DOCUMENTS
Exhibit P5 TRUE COPY OF THE IA 3/2024 WITHOUT
DOCUMENTS MENTIONED IN THE LIST OF
DOCUMENTS IN OP (G&W) 525/2024 ON THE
FILE OF FAMILY COURT, MALAPPURAM
Exhibit P6 TRUE COPY OF THE COUNTER IN IA 3/2024 IN
OP (G&W) 525/2024 ON THE FILE OF FAMILY
COURT, MALAPPURAM
Exhibit P7 TRUE COPY OF THE COMMON ORDER DATED
IN OP (G&W) 525/2024 ON THE FILE OF
FAMILY COURT, MALAPPURAM
Exhibit P8 TRUE COPY OF THE JOB ACKNOWLEDGMENT
ISSUED BY THE EMPLOYER TO THE 1ST
PETITIONER DATED 23-11-2023.
Exhibit P9 TRUE COPY OF THE PAY SLIP FOR THE MONTH
APRIL 2024 OF THE 1ST PETITIONER.
Exhibit 9(a) TRUE COPY OF THE PAY SLIP FOR THE MONTH
SEPTEMBER 2024 OF THE 1ST PETITIONER.
2024:KER:81980
OP(FC) 481/2024 & 631/2024
Exhibit P10 THE RELEVANT PAGES OF RENT AGREEMENT
DATED 11/11/2022 ENTERED INTO BETWEEN THE
LAND LORD AND 1ST PETITIONER.
Exhibit P10(a) TRUE COPY OF THE EMAIL SEND BY THE LAND
LORD ON 17/09/2022 TO THE 1ST PETITIONER
POINTING OUT THAT THE CONTRACT IS OF
ROLLING NATURE
Exhibit P11 TRUE COPY OF THE COMMUNICATION RECEIVED
FROM WREXHAM COUNTY BOROUGH COUNCIL TO
THE 1ST PETITIONER DATED 11-10-2024.
Exhibit P12 TRUE COPY OF THE LETTER DATED 13-08-2024
ISSUED BY THE EMPLOYER ON THE REQUEST OF
THE 1ST PETITIONER.
Exhibit P13 TRUE COPY OF THE PASSPORT OF THE CHILD.
2024:KER:81980
OP(FC) 481/2024 & 631/2024
APPENDIX OF OP (FC) 481/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE ORIGINAL PETITION
NO. 525/2024 FILED BY THE PETITIONER
DATED 14/5/2024 BEFORE THE FAMILY COURT
MALAPPURAM
Exhibit P2 A TRUE COPY OF THE I.A.NO.02/2024 IN OP
NO.525/2024 ALONG WITH AFFIDAVIT DATED
14.05.2024 FILED IN THE FAMILY COURT,
MALAPPURAM
Exhibit P3 THE TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE RESPONDENT IN I.A.NO.02/2024
IN OP NO.525/2024 BEFORE THE FAMILY COURT
MALAPPURAM DATED 30/5/2024
Exhibit P4 A TRUE COPY OF THE I.A.NO.03/2024 IN OP
NO.525/2024 ALONG WITH AFFIDAVIT FILED IN
THE FAMILY COURT, MALAPPURAM DATED
18/5/2024
Exhibit P5 THE TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE PETITIONER IN I.A.NO.03/2024
IN OP NO.525/2024 BEFORE THE FAMILY COURT
MALAPPURAM DATED 30/5/2024
Exhibit P6 A TRUE COPY OF THE ADMISSION DOCUMENTS
FROM THE SPRING VALLEY SCHOOL
Exhibit P7 A TRUE COPY OF THE OPINION OF THE
CLINICAL PSYCHOLOGIST, DR. MERCY THOMAS
DATED 12.05.2024
Exhibit P8 A TRUE COPY OF THE COMMON ORDER PASSED IN
THE I.A.NO.02/2024 IN OP NO.525/2024 AND
I.A.NO.03/2024 IN OP NO.525/2024 DATED
5/6/2024
RESPONDENT EXHIBITS
2024:KER:81980
OP(FC) 481/2024 & 631/2024
Exhibit R1(a) True copy of the preschool graduation
certificate issued by the AUP school
Pathaikkara dated 13-03-2024.
Exhibit R1(b) TRUE COPY OF THE APPOINTMENT LETTER DATED
26-01-2021 ISSUED TO THE 1ST APPLICANT
Exhibit R1(c) TRUE COPY OF THE JOB ACKNOWLEDGMENT
ISSUED BY THE CONCERNED AUTHORITY OF THE
BETSI CADWALADR UNIVERSITY HEALTH BOARD,
UNITED KINGDOM DATED 23-11-2023.
Exhibit R1(d) TRUE COPY OF THE PAY SLIP FOR THE MONTH
SEPTEMBER 2024.
Exhibit R1(e) TRUE COPY OF RELEVANT PAGES OF THE RENT
AGREEMENT DATED 11-11-2022.
Exhibit R1(f) TRUE COPY OF THE RELEVANT PAGES OF
PROSPECTUS OF THE SCHOOL
Exhibit R1(g) TRUE COPY OF THE LETTER DATED 13-08-2024
ISSUED BY THE EMPLOYER OF THE 1ST
APPLICANT ON HER REQUEST.
Exhibit R1(h) TRUE COPY OF THE PASSPORT OF THE CHILD.
Exhibit R1(i) TRUE COPY OF THE WRIT STATEMENT FILED BY
THE RESPONDENTS IN OP(G&W) 525 OF 2024 ON
THE FILES OF FAMILY COURT MALAPPURAM
