Nihita Sukumaran vs Anoop M.S
2024 Latest Caselaw 25789 Ker

Kerala High Court

Nihita Sukumaran vs Anoop M.S on 30 September, 2024

Author: Devan Ramachandran

Bench: Devan Ramachandran

                                              2024:KER:72974

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
       THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
                               &
        THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
  MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
                  OP (FC) NO. 522 OF 2024
AGAINST THE ORDER DATED 25.07.2024 IN GOP NO.1592 OF 2022 OF
                   FAMILY COURT,ERNAKULAM

PETITIONER/PETITIONER:

         NIHITA SUKUMARAN, AGED 35 YEARS
         D/O THE LATE E. SUKUMARAN, RESIDING AT
         1 A, E.V SINAI TOWER, GCDA ROAD, NGO
         QUARTERS, MAVELIPURAM ROAD, ZONE - 2,
         KAKKANAD, KOCHI, PIN - 682030

         BY ADVS.
         C.S.MANU
         S.K.PREMRAJ
         V.SARITHA
         DILU JOSEPH
         C.A.ANUPAMAN
         T.B.SIVAPRASAD
         C.Y.VIJAY KUMAR
         MANJU E.R.
         ANANDHU SATHEESH
         ALINT JOSEPH
         PAUL JOSE
         DAINY DAVIS
         NEETHU.K.SHAJI


RESPONDENT/RESPONDENT:

         ANOOP M.S., AGED 40 YEARS, S/O M.S. SIVAN,
         RESIDING AT MULANGAPARAMBIL HOUSE , S.N PURAM,
         ASOKAPURAM P.O, ALUVA, NOW RESIDING AT 295,
         TURNPIKE ROAD, WESTBOROUGH, MA 01581 , UNIT
         #5 - 519, U.S.A, PIN - 683101
                                                       2024:KER:72974
OP(FC) 522/24
                                   2

           BY ADVS.
           V.K.BALACHANDRAN
           AMRUTHA P.S.


      THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
30.09.2024,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                             2024:KER:72974
OP(FC) 522/24
                                       3


                               JUDGMENT

Devan Ramachandran, J.

The parties are divorced and were earlier embroiled in a

litigation for the custody of their child, with the wife having filed

O.P.No.1592/2022 before the learned Family Court, Ernakulam.

This Original Petition was, however, compromised between the

parties, leading to Ext.P2 decree, in which, the terms of the same

were incorporated. As per this compromise, the permanent

custody of the child was agreed to be with the mother, with

visitation and interim custody arrangements given in favour of the

father and paternal grandparents.

2. However, on the allegation that the petitioner-mother is

violating the said decree, the respondent filed O.P.No.2111/2023,

asserting changed circumstances and seeking permanent custody of

the child; simultaneously with which, the petitioner filed

I.A.No.7/2023, seeking that she be allowed to take the child to

the United Kingdom, or to any other place where her present 2024:KER:72974 OP(FC) 522/24

husband decides to relocate for employment.

3. It transpires, as is admitted by the parties, that the

aforementioned I.A.No.7/2023 was heard along with two other

applications filed by the respondent; but that even though the said

applications were disposed of, this interim application was kept

pending, to be heard along with the above mentioned

O.P.No.2111/2023.

4. Interestingly, Sri.V.K.Balachandran - learned counsel

for the respondent, today informed us that O.P.No.2111/2023 has

been withdrawn by his client; and that he has, instead, filed

Ext.P12 application before the learned Family Court in

O.P.No.1592/2022 (earlier disposed of through Ext.P2 decree),

seeking permanent custodianship and guardianship of the child.

5. Smt.Dainy Davis - learned counsel for the petitioner,

vehemently argued that, since her client is now remarried, thus

enjoining her to accompany her husband, when he proposes to

locate the family to U.K., it was unfair for the learned Family 2024:KER:72974 OP(FC) 522/24

Court not to have allowed I.A.No.7/2023, whereby, she had

sought a modification of the terms of the earlier decree. She

added that her client has no objection in the said application

being considered along with I.A.No.12/2024 filed by the

respondent; but prayed that orders on it be not allowed to be

delayed because, she is now awaiting clearance to go abroad with

her husband.

6. Sri.V.K.Balachandran - learned counsel for the

respondent, acceded to the afore course, agreeing that the

impugned order, to the extent to which it orders I.A.No.7/2023 to

be heard along with O.P.No.2111/2023, is no longer relevant

because the latter has been withdrawn.

In the afore circumstances and with the consent of both

sides, we allow this Original Petition, with the following

directions:

a) The learned Family Court, Ernakulam, is directed to

take up I.A.No.7/2023 in O.P.No.1592/2022 and dispose it of, 2024:KER:72974 OP(FC) 522/24

after affording necessary opportunity to both sides, as

expeditiously as is possible, but not later than two months from

the date of receipt of a copy of this judgment. We clarify that we

have not entered into the merits of any of the rival contentions

qua it; and that they are all left open.

b) Either simultaneously, or without any avoidable delay

thereafter, the learned Family Court will take up Ext.P12

application, namely I.A.No.12/2024, filed by the petitioner in

O.P.No.1592/2022, after affording necessary opportunity to both

sides; thus culminating in an appropriate order thereon, without

any avoidable delay.

Sd/-

DEVAN RAMACHANDRAN JUDGE

Sd/-

M.B. SNEHALATHA JUDGE RR 2024:KER:72974 OP(FC) 522/24

APPENDIX OF OP (FC) 522/2024

PETITIONER EXHIBITS

Exhibit P-1 TRUE COPY OF GUARDIAN O.P NO. 1592 OF 2022 DATED 10-6-2022 FILED BEFORE THE HON'BLE FAMILY COURT, ERNAKULAM

Exhibit P-2 TRUE COPY OF THE DECREE DATED 10-6-2022 IN O.P NO. 1592 OF 2022 PASSED BY THE HON'BLE FAMILY COURT, ERNAKULAM

Exhibit P-3 TRUE COPY OF THE DECREE OF DIVORCE DATED 20-6-2022 IN O.P NO. 1389 OF 2022 PASSED BY THE HONOURABLE FAMILY COURT, ERNAKULAM

Exhibit P-4 TRUE COPY OF I.A NO. 7 OF 2023 IN O.P NO. 1592 OF 2022 FILED BY THE PETITIONER ON 20-10-2023 BEFORE THE HONOURABLE FAMILY COURT, ERNAKULAM

Exhibit P-5 TRUE COPY OF THE COUNTER DATED 20-11- 2023 FILED BY THE RESPONDENT IN I.A NO.

THE HONOURABLE FAMILY COURT, ERNAKULAM

Exhibit P-6 TRUE COPY OF THE I.A NO. 10 OF 2024 IN I.A NO. 7 OF 2023 IN O.P NO. 1592 OF 2022 FILED BY THE PETITIONER ON 15-6- 2024 BEFORE THE HON'BLE FAMILY COURT, ERNAKULAM EXCLUDING THE DOCUMENTS FILED THEREIN

Exhibit P-7 TRUE COPY OF THE G.O.P NO. 2111 OF 2023 DATED 21-9-2023 FILED BY THE RESPONDENT BEFORE THE HON'BLE FAMILY COURT, ERNAKULAM

Exhibit P-8 TRUE COPY OF THE OBJECTION DATED 1-4- 2024 FILED BY THE PETITIONER IN G.O.P NO. 2111 OF 2023 ON THE FILES OF THE HON'BLE FAMILY COURT, ERNAKULAM 2024:KER:72974 OP(FC) 522/24

EXCLUDING THE DOCUMENTS FILED THEREIN

Exhibit P-9 TRUE COPY OF THE I.A NO. 3 OF 2024 DATED 2-3-2024 IN G.O.P NO. 2111 OF 2023 FILED BY THE RESPONDENT ON THE FILES OF THE HON'BLE FAMILY COURT, ERNAKULAM

Exhibit P-10 TRUE CERTIFIED COPY OF THE ORDER DATED 5-4-2024 IN I.A NO. 3 OF 2024 IN G.O.P NO. 2111 OF 2023 PASSED BY THE HON'BLE FAMILY COURT, ERNAKULAM

Exhibit P-11 TRUE CERTIFIED COPY OF THE COMMON ORDER DATED 25-7-2024 IN I.A NO. 44 OF 2023 IN O.P NO. 1592 OF 2022, I.A NO. 6 OF 2023 IN O.P NO. 1592 OF 2022 AND I.A NO. 7 OF 2023 IN O.P NO.1592 OF 2022 PASSED BY THE HON'BLE FAMILY COURT, ERNAKULAM

Exhibit P-12 TRUE COPY OF I.A NO. 12 OF 2024 IN O.P NO. 1592 OF 2022 FILED BY THE RESPONDENT HEREIN BEFORE THE HON'BLE FAMILY COURT, ERNAKULAM