Kerala High Court

Shiji Thomas vs Nina Ann Jacob on 11 February, 2025

Author: Devan Ramachandran

Bench: Devan Ramachandran

                                               2025:KER:11598



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
                              &
         THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
  TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
                   OP (FC) NO. 786 OF 2024
  AGAINST THE ORDER DATED 18.10.2024 IN I.A.13/2023 IN OPGW
          NO.258 OF 2022 OF FAMILY COURT, KALPETTA



PETITIONER/RESPONDENT NO.1/PETITIONER:

         SHIJI THOMAS, AGED 44 YEARS, S/O. THOMAS
         KANNANKARA THOMAS, KEMOLS BHAVAN,
         CHELANNUR POST, KOZHIKODE, PIN - 673616

         BY ADVS.
         K.RAJEEV
         V.VISAL AJAYAN
         SREELAKSHMI SURESH
         NIVEDITHA R. MENON


RESPONDENTS/PETITIONER & RESPONDENTS 2&3/RESPONDENTS:

    1    NINA ANN JACOB, AGED 38 YEARS, D/O. JACOB
         NINAN, MARUTHUTHARA HOUSE, KOLAGAPPARA,
         KRISHNAGIRI POST AND VILLAGE, SULTHANBATHERY,
         WAYANAD DISTRICT, PIN - 673591

    2    JACON NINAN, AGED 65 YEARS, S/O. M.K.NINAN,
         MARUTHUTHARA HOUSE, KOLAGAPPARA, KRISHNAGIRI
         POST AND VILLAGE, SULTHANBATHERY, WAYANAD
         DISTRICT, PIN - 673591

    3    SHERLY JACOB, AGED 61 YEARS, W/O. JACOB NINAN,
         MARUTHUTHARA HOUSE, KOLAGAPPARA, KRISHNAGIRI
         POST AND VILLAGE, SULTHANBATHERY, WAYANAD
         DISTRICT, PIN - 673591
                                                           2025:KER:11598
OP(FC) 786/24
                                         2

           BY ADVS.
           BABU JOSEPH KURUVATHAZHA
           ARCHANA K.S.(K/000243/2018)
           MOHAMMED SHAFI.K(K/573/2016)
           NOEL EALIAS(K/001630/2022)


      THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
11.02.2025,     THE   COURT   ON   THE       SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                     2025:KER:11598
OP(FC) 786/24
                                      3


                           JUDGMENT

Devan Ramachandran, J.

The petitioner challenges Ext.P6 order of the learned Family

Court, Kalpetta, which allowed I.A.No.13/2023 filed by the 1st

respondent, in O.P.(G&W)No.258/2022, filed by him.

2. Compendiously, the petitioner filed the afore Original

Petition seeking custody of his children; and the 1 st respondent

filed I.A.No.13/2023 in it, seeking permission to take them to the

United Kingdom (U.K.), along with her. This application was

initially dismissed by the learned Family Court saying that it will

be considered along with the Original Petition; but when she

approached this Court, an order was issued directing the learned

Family Court to reconsider the matter.

3. The learned Family Court has now allowed the

application of the 1st respondent-mother through the impugned

order, thus permitting her to take the children along with her to

U.K., but reserving opportunity to the petitioner to interact with 2025:KER:11598 OP(FC) 786/24

them through phone/online platforms.

4. The petitioner challenges the impugned order, asserting

that the opportunity of interaction with the children given to him

is inadequate and that he is entitled to have their interim custody.

5. Sri.K.Rajeev - learned counsel for the petitioner, argued

that, when the learned Family Court itself has found that the

children will require equal attention of their parents, it was wrong

on its part to have merely given him the opportunity of

interaction through phone/online platforms. He insisted that such

interactions will be woefully insufficient because, only through

personal meetings, vide adequate arrangements, the parental

bonding can be fostered. He thus prayed that Ext.P6 be set aside.

6. Sri.Babu Joseph Kuruvathazha - learned counsel for the

respondent, however, argued that the children are 14 and 9

respectively and that they cannot be left without the care of either

of the parents, as is now being attempted by the petitioner. He

explained that, while his client is in U.K., the petitioner is in 2025:KER:11598 OP(FC) 786/24

Muscat, living alone. He pointed out that the specific case of his

client is that, if the children are allowed to be taken by her to the

U.K., she can take full care of them since she is earning well,

with the capacity to hire help as required. He argued that, on the

contrary, the intent of the petitioner is not to take care of the

children, but to wreak vengeance against his client; since he is

living alone in Muscat; and thus argued that Ext.P6 is

irreproachable, praying that it be left uninterdicted.

7. When we evaluate the afore rival positions, we must

first record the facts which are uncontested. The parties are

fighting for divorce and the matrimonial issues between them

remain unresolved. Obviously, they cannot live together; and

hence, the custody of the children will have to be thought of. The

1st respondent-wife is working in U.K., while the petitioner-

husband in Muscat. Both of them are living independently and the

question really is who among them would be the best to take care

of the children.

2025:KER:11598 OP(FC) 786/24

8. We notice that both children are girls, elder of them

being 14 years in age, and the younger being 9; and it is without

doubt that, at the age they are in, they will require the attention

of the mother more. Of course, if they are able to obtain equal

time from their father, it will be the best for them; but

unfortunately, their parents are involved in matrimonial strife.

9. We see from the impugned order that the learned

Family Court has considered every factual aspect in its proper

perspective, as discernible in paragraphs 10 and 11 thereof, which

are extracted hereunder for ease of reference:

10. The petitioner has claimed that she is permanently employed in England, earning a high salary, and that education expenses for the children up to Grade 12 are free for those who are employed and permanently residing there. The children are safe at school during the daytime while she is at work, and a maid is available to care for them during night shifts. Additionally, the children are eager to accompany the petitioner to England. Although she has not produced any documents to verify her income, her testimony indicates that she is working in England and has sufficient resources to support the children. The respondent is currently employed in Muscat, earning a substantial salary. However, he has neither filed a counter for custody of the children nor opposed this petition. Additionally, the petitioner's evidence indicates that the 2025:KER:11598 OP(FC) 786/24

respondent did not care for the children while they were living with her parents or at present.

11. The next consideration is who can provide more attention and care to the child, or who can spend more time with the child. The learned counsel for the petitioner stated that she is currently working in England, earning a substantial salary. The children are safe at school during her daytime working hours, and a maid is available to care for them during her night shifts. Additionally, the counsel emphasized that if the petitioner takes night shifts, she would have her days free, so she would get more time to care the children. She also asserts that she can hire a maid to manage the children's needs in her absence. The respondent did not file any counter and he is working in Muscat. So considering the time has been given to the child by the petitioner and respondent, I am of the view that the petitioner can spend/give, more time with the children than the respondent. Apart from that, since she has more financial stability, she can even appoint a maid to look after the affairs of the child as well.

10. We cannot find the reasoning of the learned Family

Court to be wrong in any manner, nor to be perverse, so as to

persuade us to intervene. Since the petitioner also admits

unequivocally that he is living alone in Muscat, the entrustment of

two minor girls with him at this stage becomes rather untenable.

11. That said, we now come to the question of what kind

of arrangement should be made in favour of the petitioner

because, his desire to maintain parental bonding with his children 2025:KER:11598 OP(FC) 786/24

is certainly justified. We see from the impugned order that the

petitioner is given permission to have interaction with the children

through phone/online platforms; but no time frame has been fixed.

As regards visitation rights, since he is in Muscat, either he will

have to travel to U.K. to be with the children; or we will have to

consider an arrangement as and when the parties will be in Kerala

at the same time.

12. As regards the interaction by the father with the

children through phone/online platform, we are of the view that it

need not be left to the parties to fix the times for such, as has

been done by the learned Family Court - since they are involved

in litigation - and that we will be justified in fixing the time

frames for it.

13. Further, we record the undertaking of the 1 st respondent

that, if the petitioner intends to travel to U.K. and if he informs

her at least a week in advance, she will have no objection in him

meeting the children during day time. We also record that the 2025:KER:11598 OP(FC) 786/24

parties are in unison - as voiced through their respective learned

counsel - that whenever the children are in Kerala, their time can

be shared equally between the parents.

In the afore circumstances, we order this Original Petition,

confirming Ext.P6 to the extent to which the 1 st respondent is

allowed to take the children to U.K., however, on condition that

she will produce them in Court as and when so directed; but

modifying it in the following manner.

a) The petitioner will be entitled to talk to the children

through phone or any other online platforms everyday between 6

and 8 P.M. (U.K. time); but subject to their consent and without

causing any inconvenience to their curricular activities.

b) We permit the petitioner to travel to U.K. to meet the

children at any time of his choice; however, after informing the 1 st

respondent at least a week in advance regarding the same. During

this time, he can have their custody from 10 A.M. to 6 P.M. and

the place of their exchange shall be the residence of the 1 st 2025:KER:11598 OP(FC) 786/24

respondent. We record the full consent of the 1 st respondent to

this.

c) Whenever the parties are in India together - which,

they should inform each other appropriately, at least a week

before their respective travel - the custody of the children will be

equally shared by them and this shall include overnight custody

also, with the first half being with the father.

d) We record the undertaking of the 1 st respondent that

she will not change the nationality of the children without the

permission of the learned Family Court, since the Original Petition

is still pending.

Sd/-

DEVAN RAMACHANDRAN JUDGE

Sd/-

M.B. SNEHALATHA JUDGE RR 2025:KER:11598 OP(FC) 786/24

APPENDIX OF OP (FC) 786/2024

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PETITION OP(G&W) NO.

258/2022 FILED BEFORE THE FAMILY COURT, WAYANAD

Exhibit P2 TRUE COPY OF THE DEPOSITION OF THE PETITIONER.

Exhibit P3 TRUE COPY OF THE DEPOSITION OF THE 1ST RESPONDENT.

Exhibit P4 TRUE AND CORRECT COPY OF THE AFFIDAVIT DATED 15.11.2023.

Exhibit P5 TRUE COPY OF THE ORDER DATED 30.5.2024 OF THIS HON'BLE COURT IN OP(FC) NO. 226/2024