Kerala High Court
Jobinson Mathew vs Riya Thomas on 13 September, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
2024:KER:70017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
OP (FC) NO. 571 OF 2024
AGAINST THE ORDER DATED 02.09.2024 IN I.A.12/2024 IN OPGW NO.1660
OF 2023 OF FAMILY COURT, KOTTAYAM
PETITIONER:
JOBINSON MATHEW, AGED 39 YEARS, S/O. MATHEW, RESIDING
AT KUNNUMALIL HOUSE, MAVADI POST, KALKOONTHAL VILLAGE,
UDUMBUCHOLA TALUK, IDUKKI DISTRICT, PIN - 685554
BY ADVS.
A.MUHAMMED MUSTHAFA
ASWIN KUMAR M J
JOSE MATHEW
RESPONDENTS:
1 RIYA THOMAS, AGED 34 YEARS, DAUGHTER OF
THOMAS MATHEW AANJILIVELIL HOUSE, NALUKODI
P.O., PAYIPPAD, THENGANA VILLAGE,
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT,
KERALA,, PIN - 686548
2 MONIYAMMA THOMAS, AGED 64 YEARS, WIFE OF
THOMAS AANJILIVELIL HOUSE, NALUKODI P.O.,
PAYIPPAD, THENGANA VILLAGE, CHANGANACHERRY
TALUK, KOTTAYAM DISTRICT, KERALA,, PIN - 686548
3 THOMAS MATHEW, AGED 67 YEARS, SON OF MATHEW
AANJILIVELIL HOUSE, NALUKODI P.O., PAYIPPAD
THENGANA VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, KERALA,, PIN - 686546
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
13.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(FC) 571/24
2
JUDGMENT
Devan Ramachandran, J.
The petitioner assails Ext.P11 order of the learned Family
Court, Kottayam, on the ground that it has granted him interim
custody of his child only for a short duration between 14.09.2024
and 16.09.2024. He points out that he had filed I.A.No.19/2024,
namely Ext.P10, wherein, he had asked for custody of the child
from 12.09.2024 till 22.09.2024 - being Onam holidays for the
child; but that it has been wrongly recorded in Ext.P11 that he
acceded to the afore said arrangement. He thus prays that Ext.P11,
to the extent impugned be set aside.
2. We notice from the files that this Court had attempted
to serve notice on the respondents through a Special Messenger.
The Messenger has returned reporting that the respondents refused
to accept the summons; and that, in fact, the gate of their house
was kept locked, thus incapacitating him from entering the
premises.
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3. We have examined Ext.P11 and it records that the
directions therein are with the consent of both sides.
4. It is also without doubt that none of the pleadings on
record indicate that the petitioner did not accede to the
arrangement; but it is argued before us by Sri.A.Muhammed
Musthafa - learned counsel for the petitioner, that, what was
conceded to by his client was only in I.A.No.12/2024 - filed by
the respondents, to modify an earlier arrangement regarding the
interim custody, but not qua Ext.P10, which is the application
filed by his client seeking custody of the child during Onam
holidays.
5. As we have already said above, normally, this Court
would have been loath in interfering with Ext.P11, because it says
that the arrangement therein has been conceded to by the parties.
If the respondents were present before us today, perhaps, we
could have got a better view of the matter; but when they have
refused to do so, as already recorded above, we are constrained to
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issue orders, as we deem it appropriate.
6. When one looks through Ext.P11, the learned Family
Court has restricted the interim custody of the child to the
petitioner-father from 14.09.2024 to 16.09.2024, saying that the
child has to participate in the Onam Program till 2 P.M. on
14.09.2024 and that her vaccination is due on 18.09.2024.
7. Even assuming that the afore can be accepted, one fails
to understand why the child could not be ordered to be with the
father till at least the morning of 18.09.2024. We are, therefore,
of the firm view that, in spite of the record of consent in Ext.P11,
we will be justified in modifying it, since it will cause no
prejudice to either of the parties.
In the afore circumstances, we allow this Original Petition to
the limited extent of modifying Ext.P11; thus allowing the child to
be in the interim custody of the petitioner from 2 P.M. on
14.09.2024 till 10 A.M. on 18.09.2024. In all other respect, the
said order will remain unaltered.
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We, however, clarify that this order will have no bearing on
the consideration of Ext.P10 application, if it is still pending; and
that the learned Family Court will be at liberty to deal with it in
accordance with law, if it becomes so warranted in future.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
JUDGE
RR
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OP(FC) 571/24
APPENDIX OF OP (FC) 571/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE OP(G&W) NO. 1660 OF
2023, DATED 15.11.2023 ON THE FILES OF
FAMILY COURT, ETTUMANOOR
Exhibit P2 A TRUE COPY OF THE IA 1/23 IN OP(G&W) NO.
1660 OF 2023 DATED 17.11.2023 BEFORE THE
FAMILY COURT, ETTUMANOOR
Exhibit P3 A TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENTS IN IA 1/23 IN OP(G&W) NO.
1660 OF 2023 DATED 24.01.2024 BEFORE THE
FAMILY COURT, ETTUMANOOR
Exhibit P4 A TRUE COPY OF THE ORDER DATED 31.01.2024
IN IA 1/23 IN OP(G&W) NO. 1660 OF 2023 ON
THE FILES OF FAMILY COURT, ETTUMANOOR
Exhibit P5 A TRUE COPY OF THE JUDGMENT DATED
01.04.2024 IN OP(FC) NO. 220 OF 2024
Exhibit P6 A TRUE COPY OF THE IA 4/24 IN OP(G&W) NO.
1660 OF 2023 DATED 26.03.2024 BEFORE THE
FAMILY COURT, ETTUMANOOR
Exhibit P6(a) A TRUE COPY OF THE IA 10/24 IN OP(G&W)
NO. 1660 OF 2023 DATED 26.03.2024 BEFORE
THE FAMILY COURT, ETTUMANOOR
Exhibit P7 A TRUE COPY OF THE ORDER DATED 17.05.2024
IN IA 16/24 IN OP(G&W) NO. 1660/2023
Exhibit P8 A TRUE COPY OF THE IA 12/24 IN OP(G&W)
NO. 1660/2023, DATED 30.03.2024
Exhibit P9 A TRUE COPY OF THE OBJECTION TO IA 12/24
IN OP(G&W) NO. 1660/2023, DATED
20.04.2024
Exhibit P10 A TRUE COPY OF THE IA 19/24 IN OP(G&W)
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NO. 1660/2023, DATED 30.08.2024
Exhibit P11 A TRUE COPY OF THE ORDER, DATED
02.09.2024 IN IA 12/24 IN OP(G&W) NO.
