Kerala High Court
Rakhi Rajagopal vs Madhu V on 13 September, 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
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
OP (FC) NO. 583 OF 2024
AGAINST THE JUDGMENT DATED 09.08.2024 IN I.A.NO.1 OF 2024 IN
OPGW NO.1019 OF 2024 OF FAMILY COURT, ERNAKULAM
PETITIONER/RESPONDENT:
RAKHI RAJAGOPAL, AGED 35 YEARS
W/O.MADHU V., ANJALI APARTMENT, A1, GROUND FLOOR,
MANIMALA ROAD, PRASANTHI NAGAR ROAD NO.4, EDAPPALLY,
PIN - 682024
BY ADVS.
M.S.UNNIKRISHNAN
ALEENA MARIA JOSE
ATHIRA K.S.
DIYA MERIN BIJU
SOHAN VARGHESE FRANCIS
RESPONDENT/PETITIONER:
MADHU V., AGED 44 YEARS
S/O.VIJAYAKUMAR, USHUS WARIAM, ENATHU. P.O.,
ADOOR, PATHANAMTHITTA, PIN - 691526
BY ADVS.
JOY C.PAUL
BOBBY GEORGE(K/262/2000)
ABHILASH MURALEEDHARAN(K/1345/2021)
NOBLE GEORGE(K/002440/2022)
BY SRI JOY C.PAUL
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
13.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(FC) No.583 of 2024 2
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JUDGMENT
Devan Ramachandran, J.
The petitioner assails Ext.P3 order of the learned
Family Court, Ernakulam, but only to the extent to which it
has granted overnight custody of her child to the
respondent - father, for the first five days during Onam and
Christmas vacations and for the first fifteen days of April
and May summer vacation.
2. It is the specific case of the petitioner, as argued
by her learned counsel - Sri.M.S.Unnikrishnan, that the
child has not seen the father for more than a year now and
that it will be very difficult for her to adjust, if asked to stay
with him for five days continuously. She asserts that the
child is only 3½ in age years and will not sleep without her
company at this stage; but that she has no objection in the
child spending time, as much as possible, with her father
during the day, for which, she leaves it to this Court to
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issue appropriate orders.
3. In response to the afore submissions of the
petitioner, Sri.Joy C.Paul - appearing for the respondent,
submitted that his client has been unfairly denied company
of the child for the last more than a year; and therefore,
that the argument, that she will not be comfortable with
him, is wholly devoid of merit. He added that the learned
family Court has assessed all the relevant aspects; and thus
ordered that the child will be with his client for the first five
days during the Onam and Christmas, being conscious of
the fact that such a parental bonding is absolutely
necessary and essential.
4. We must record upfront that we have no dispute
with the afore arguments of the respondent because, in
ideal circumstances, the child must have the company of
both parents equally. However, unfortunately, the parents
are in a bitter situation, on account of the matrimonial
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disputes; and we will hence have to weigh all relevant
aspects, to ensure that the child is subjected to no
prejudice.
5. Whatever be the reason, the child has not been
with the father for a considerable period of time. That
apart, the father and mother are living far away - one in
Pathanamthitta and the other in Ernakulam; and, therefore,
the learned Family Court has rightly held that the child
cannot be allowed to be in overnight custody of the father
at Pathanamthitta, several times in a month because, it will
cause her strain of having to travel the long distance. It,
however, then granted custody to the father during the first
five days during Onam and Christmas vacations,
respectively, and for the first 15 days of the summer
vacation, which, we do not propose to speak on in this
judgment, because it is not necessary.
6. As matters now stand, the petitioner has invoked
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the jurisdiction of this Court against Ext.P3, only because,
he says that the child may not go to the father this Onam
for overnight stay, on account of the factum of she being
not at ease with him consequent to the long separation.
7. We find some force in the afore apprehension
because, the child is only 3½ years of age and if she is to
cry in the nights, or face any other issues, it will be very
difficult for the father to control her, particularly when it is
admitted - whatever be the reason - that there has been a
long separation between them.
8. That said, however, we are also of the firm view
that the father must have maximum time with the child
because her bond with both parents is absolutely
necessary.
9. We, therefore, put it to the parties whether they
would stand in the way of this Court making a new
arrangement, however, only for this Onam, and leaving it
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open to them to seek any further modification, or other
reliefs, before the learned Family Court. We suggested to
them that we will allow the father to be in custody of the
child everyday from 16.09.2024 till 22.09.2024, from
10 a.m to 7 p.m.
10. We record that both sides expressly agreed to
this arrangement; but with the respondent praying that, as
far as Christmas vacations are concerned, Ext.P3 be left
unaltered.
11. As we have already said above, we are not
interdicting Ext.P3 at all, but are only modifying the
arrangement for the purpose of Onam holidays this year,
taking into account the peculiar circumstances. Obviously,
therefore, if Ext.P3 is not modified in future as per law, the
parties will have to abide by it in all other respects.
12. In the above circumstances, we allow this
Original Petition, to the limited extent of modifying the
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interim custody arrangement of the child during this Onam
holidays, by allowing the petitioner to be in her custody
from 10 a.m till 7 p.m all days from 16.09.2024 to
22.09.2024. As regards the other directions in Ext.P3, we
clarify that we have not dealt with the same, though the
parties will be at liberty to invoke any other remedy that
they have in future, subject to law.
The place of exchange of the child will be the front
gate of the residence of the mother, as also agreed to by
the parties.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
JUDGE
stu/sp/13/09/2024
2024:KER:70812
APPENDIX OF OP (FC) 583/2024
PETITIONER EXHIBITS
Exhibit P1 A COPY OF I.A. NO. 1 OF 2024 IN G.O.P.
NO.1019 OF 2024 ON THE FILES OF HON'BLE
FAMILY COURT, ERNAKULAM
Exhibit P2 A COPY OF THE COUNTER FILED IN I.A.NO 1
OF 2024 IN G.O.P. NO 1019 OF 2024
Exhibit P3 A COPY OF THE ORDER IN I.A.NO. 1 OF
2024 IN G.O.P NO. 1019 OF 2024 ON THE
FILES OF THE HON'BLE FAMILY COURT,
ERNAKULAM.
