Kerala High Court

Jojimole vs Leju George on 3 February, 2025

Author: Devan Ramachandran

Bench: Devan Ramachandran

                                                       2025:KER:11383
MAT.APPEAL NO. 1177 OF 2024

                                   1
               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

                                   &

             THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA

        MONDAY, THE 3RD DAY OF FEBRUARY 2025 / 14TH MAGHA, 1946

                     MAT.APPEAL NO. 1177 OF 2024

        AGAINST THE JUDGMENT DATED 06.08.2024 IN OP NO.2022 OF 2019

OF FAMILY COURT,ERNAKULAM

APPELLANTS/PETITIONERS:

    1       JOJIMOLE
            AGED 37 YEARS
            D/O P.J.JOLLY, RESIDING AT PARAVILLA VEEDU,
            KUMBALAM.P.O; KOLLAM DIST. REPRESENTED BY THE POWER OF
            ATTORNEY HOLDER , 3RD RESPONDENT. JALAJA JOLLY, AGED
            58YRS, W/O P.J.JOLLY. RESIDING AT PARAVILLA VEEDU,
            KUMBALAM P.O., KOLLAM DIST, PIN - 691503

    2       P.J.JOLLY
            AGED 68 YEARS
            S/O JEROME RESIDING AT PARAVILLA VEEDU, KUMBALAM P.O.,
            KOLLAM DIST., PIN - 691503

    3       JALAJA,
            AGED 57 YEARS
            W/O. PETER JMULAVANA VIA, PERAYAM VILLAGE, KOLLAM
            DISTRICT, PARAVILAVEEDU, MULAVANA, KUMBALAM.P.O, PIN -
            691503


            BY ADVS.
            BINDU SREEKUMAR
            GOUTHAM SREEKUMAR
            SANDRA RAJAN I.
                                                         2025:KER:11383
MAT.APPEAL NO. 1177 OF 2024

                                    2

RESPONDENT

             LEJU GEORGE
             AGED 48 YEARS
             S/O BABY GEORGE, MADATHEDATHU VEEDU, ERUVELI,
             CHOTTANIKKARA P.O, KANAYANNOOR THALUK, ERNAKULAM
             DISTRICT, PIN - 682312


             BY ADVS.
             SHAJI V.A
             ELIZABETH JOHNY(K/155/2020)



     THIS    MATRIMONIAL   APPEAL   HAVING   BEEN   FINALLY   HEARD   ON
03.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                             2025:KER:11383
MAT.APPEAL NO. 1177 OF 2024

                                    3
                              JUDGMENT

DEVAN RAMACHANDRAN (J)

The appellants assail the judgment of

the learned Family Court, Ernakulam, in

O.P(G&W)No.2022/2019, through which, the first

among them - namely the mother of a 13 year

old child - has been denied his permanent

custody and legal guardianship, as prayed for.

2. Smt.A.Bindu Sreekumar - learned

counsel for the appellants, argued that the

sole reason why the learned Family Court has

declined the afore plea is because the first

appellant is working abroad in Israel; and

since the child expressed his desire to

continue with the father, when she was not so

available. She then pointed out that the

child, however, had clearly expressed his

desire to stay with his mother as and when she

is available in India; but that this has been

completely disregarded by the learned Family 2025:KER:11383 MAT.APPEAL NO. 1177 OF 2024

Court while issuing the impugned judgment. She

thus prayed that the same be set aside and the

1st appellant be granted permanent custody and

legal guardianship of the child.

3. The afore request of the 1st

appellant was, however, vehemently opposed by

Sri.V.A.Shaji - learned counsel for the

respondent, saying that the 1st appellant is

suffering from mental illness and that the

admitted factum of her being in Israel would

be sufficient to deny her plea for permanent

custody and legal guardianship. He pointed out

that the learned Family Court had interacted

with the child, who wanted to be with the

father; and that it is on such basis that the

arrangement, as available in the impugned

judgment, have been arrived at. He thus prayed

that this Appeal be dismissed.

4. Before we move forward, we must 2025:KER:11383 MAT.APPEAL NO. 1177 OF 2024

record that we had interaction with the

parties when they were present before us,

along with the child, on 08.01.2025. The

chronicle of the said interaction and our

opinion, is recorded in the order of the said

day, which is extracted below:

"Read order dated 6.1.2025. Both parties along with the child were before us.

The mother said that she is leaving for Israel on 2nd of February 2025 and requested that the child be along with her until she leaves. She also offered that she will permanently relocate herself to Kochi next to the present residence of the father.

The father agreed that the child can be with the mother till 31st January, 2025 as an interim arrangement.

In the afore circumstances, we allow the mother to be the interim custody of the child from now till 5 p.m. on 31.1.2025. On the afore date, the father will pick up the child from the residence of the mother.

List on 3.2.2025".

5. Today, both sides are ad idem that

the 1st appellant - mother is still in Israel, 2025:KER:11383 MAT.APPEAL NO. 1177 OF 2024

while the other appellants are available in

India.

6. Sri.V.A.Shaji - learned counsel

for the respondent, tried to impute that, when

interim custody of the child was given through

the afore extracted order, his classes were

disturbed for all the four days. He argued

that this is more so why his client is

justified in opposing this Appeal.

7. However, Sri.A.Bindu Sreekumar -

learned counsel for the appellants, submitted

that, since the first among them is now in

Israel, they would be satisfied, for the time

being, if they are allowed to talk to the

child every day on video call/voice call; and

if custody is given to the mother during the

period when she is on leave. She then

requested that, as regards the grandparents,

they be also given the liberty of being with 2025:KER:11383 MAT.APPEAL NO. 1177 OF 2024

the child on the first half of the Onam and

Christmas holidays and the summer vacation,

depending upon the school calendar of the

child.

8. We believe that the afore

suggestion of Smt.A.Bindu Sreekumar is the

best available for the parties; and we,

therefore, put it to Sri.V.A.Shaji whether his

client would accede to the same. He, however,

had some objection to the grant of the interim

custody of the child to the grandparents for

the first half of the summer vacation saying

that it will be too long. He then added that,

if this Court is to order that custody of the

child will be with the mother whenever she is

in India, it should not be taken by her to be

a carte blanche to return from Israel and stay

in India permanently, and then seek full

custody in an indirect manner.

2025:KER:11383 MAT.APPEAL NO. 1177 OF 2024

9. The afore objections of

Sri.V.A.Shaji has some force; and we are of

the firm opinion that the rival interests of

the parties will have to be sufficiently

modulated, weighed and balanced.

In the afore circumstances, with the

consent of both sides, we allow this Appeal in

part and modify the judgment in the following

manner:

A) The findings of the learned Family

Court against the 1st appellant, for permanent

custody and legal guardianship of the child is

sustained; however, leaving her liberty to

make a fresh application for the same, as and

when she relocates to India permanently.