Kerala High Court
Tinu Jose vs Tomi Thomas on 5 February, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
2025:KER:9792
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946
OP (FC) NO. 36 OF 2025
AGAINST THE ORDER DATED 28.10.2024 IN I.A. 1/2023 IN OP
NO.398 OF 2023 OF FAMILY COURT, KOTTAYAM
PETITIONER/RESPONDENT IN O.P.:
TINU JOSE, AGED 32 YEARS, D/O. JOSE P.J,
POOMARATHINGAL HOUSE, NJEEZHHOR P.O,
NJEEZHOOR VILLAGE, VAIKOM TALUK,
KOTTAYAM DISTRICT, PIN - 686612
BY ADVS.
DEEPAK MOHAN
ARUN ANTONY (K/1053/2011)
RESPONDENTS/PETITIONERS IN O.P.:
1 TOMI THOMAS, AGED 35 YEARS, S/O. THOMAS,
VAYALACKAL HOSUE, POOZHIKKOL P.O, VAIKOM
TALUK, KOTTAYAM DISTRICT, PIN - 686604
2 THOMAS, AGED 62 YEARS, S/O. OUSEPH (JOSEPH),
VAYALACKAL HOSUE, POOZHIKKOL P.O, VAIKOM
TALUK, KOTTAYAM DISTRICT, PIN - 686604
3 MARIYAMMA THOMAS, AGED 54 YEARS, W/O. THOMAS,
VAYALACKAL HOSUE, POOZHIKKOL P.O, VAIKOM TALUK,
KOTTAYAM DISTRICT-686604, PIN - 686604
BY ADV BOBY M SEKHAR
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
05.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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2
JUDGMENT
Devan Ramachandran, J.
The mother of an eight year old girl child is the petitioner
herein, who challenges Ext.P5 order of the learned Family Court,
Kottayam.
2. Compendiously, the impugned order has been issued in
I.A.No.1/2023 in O.P.No.398/2023 (which was filed by the 1st
respondent-father, seeking permanent custody of the child), praying
that she be produced before the learned Family Court, thus allowing
him to have interaction with her. This application has been allowed
by the learned Family Court, permitting the 1 st respondent to have
interim custody of the child every second and fourth Saturdays from
10 A.M. till 5 P.M.; and to talk to her between 7 P.M. and 9 P.M.,
for fifteen minutes, every Sunday through video-call.
3. The petitioner challenges the afore order as being
unworkable, asserting that the child is unwilling to go to the 1 st
respondent-father; and contending that if she is pushed to do so, it
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will cause her extreme trauma and psychological scar.
4. Noticing the rival position of the parties, we had recorded
their offer to be present before this Court, along with the child. They
were thus present on 03.02.2025; and we had a long interaction with
them, as also the child. We found that the child did not even
recognize her father and was unwilling to go near him, much less
talk to him. We persuaded her to address her father and to talk to
him, but she refused. We found the child to be very innocent, but
equally articulate, capable of understanding the situation around her.
However, since we felt that the child is under some kind of
emotional stress, perhaps on account of the ongoing disputes between
her parents, we directed the parties to attend counselling, under the
aegis of the Family Counselling Centre of this Court.
5. The report of the Psychologist attached to the
Family Counselling Centre is available with us and it contains insight
into the complex relationship between the parties and the child. We
do not propose to speak on it in detail, since it might be used
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unfairly by the parties against each other; but, suffice to say, we are
certain that the child cannot be forced to be with the father for long
periods at the initial stage. We are left without doubt - taking into
account the behaviour of the child in front of us, as also the report
of the Psychologist - that the interaction between her and the 1 st
respondent must be allowed only in a staggered manner.
6. Sri.Deepak Mohan - learned counsel for the
petitioner, submitted that the arrangement made by the learned
Family Court in the impugned order, namely that the child will be
with the father from 10 A.M. till 5 P.M. on every second and fourth
Saturdays, is impractical because of the child's reluctance; and
pleaded that this Court allow him such interaction only from 2 P.M.
till 5 P.M. on every second and fourth Sundays, so that she can join
him after the 'Sunday class'. He added that this will give the child,
as also the father, the opportunity of getting used to each other; and
prayed that no further orders be issued, though his client is fully
agreeable to the father being allowed to video-call the child on every
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Sunday, as has been directed in the impugned order.
7. Smt.Boby M. Sekhar - learned counsel for the
respondents, initially argued that the child is showing reluctance to
his client because of the heavy tutoring she had in the past; but then
conceded that, as matters now stand, the child may not be willing to
be with her father for long periods. She also, therefore, suggested
that the interaction be allowed in a staggered manner, to be
progressively increased in future.
8. In view of the afore, we are without doubt that the
impugned order requires to be interfered with, not because we find
error in it, but noticing the ground realities involving the child.
Therefore, with the consent of both sides, we allow this
Original Petition and modify Ext.P5, thus allowing the 1st respondent
to be with the child from 2 P.M. to 5 P.M. every second and fourth
Sundays. The venue for exchange of the child shall be 'St.John the
Baptist Church', Neezhoor, Ettumanoor, which has been suggested by
both sides.
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The liberty granted to the 1st respondent by the learned
Family Court, to talk to the child through video-call every Sunday
between 7 P.M. and 9 P.M. for 15 minutes, is maintained.
The afore arrangement will continue for a minimum period
of three months; after which the 1st respondent is also reserved
liberty to move the learned Family Court for modification of this
order, if the child becomes more comfortable with him; for which
purpose, all rival contentions in that regard are left open.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
JUDGE
RR
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APPENDIX OF OP (FC) 36/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE ORIGINAL PETITION
NO.1448/2023 FILED BY THE PETITIONER
HEREIN BEFORE THE FAMILY COURT, KOTTAYAM
AT ETTUMANOOR
Exhibit P2 A TRUE COPY OF THE APPLICATION
I.A.NO.1/2023 DATED 14.03.2023 IN
OP.NO.398/2023 ON THE FILES OF THE FAMILY
COURT, KOTTAYAM AT ETTUMANOOR
Exhibit P3 A TRUE COPY OF THE I.A.NO.4/2023 DATED
04.04.2023 FILED BY THE RESPONDENTS
HEREIN IN O.P.NO.398/2023 OF THE FAMILY
COURT, KOTTAYAM AT ETTUMANOOR
Exhibit P4 THE TRUE COPY OF THE OBJECTION
I.A.NO.4/2023 IN O.P.NO.398/2023 OF THE
FAMILY COURT, KOTTAYAM AT ETTUMANOOR
DATED 30.09.2023 FILED BY THE PETITIONER
Exhibit P5 THE TRUE COPY OF THE ORDER DATED
28.10.2024 IN I.A.NO.1/2023 IN
O.P.NO.398/2023 ON THE FILES OF THE
FAMILY COURT, KOTTAYAMA AT ETTUMANOOR
Exhibit P6 THE TRUE COPY OF THE DISCHARGE SUMMARY
ISSUED BY THE ST. VINCENT'S HOSPITAL,
KURAVILANGAD, KOTTAYAM
