Kerala High Court
Jeena Maria N Francis vs Noble Thomas on 24 January, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 24TH DAY OF JANUARY 2025 / 4TH MAGHA, 1946
MAT.APPEAL NO. 770 OF 2024
AGAINST THE JUDGMENT DATED 15.05.2024 IN OP NO.91 OF 2024 OF FAMILY COURT,
MUVATTUPUZHA
APPELLANT/PETITIONER:
JEENA MARIA N FRANCIS, AGED 41 YEARS
D/O N.V FRANCIS, NANGELIMALIL HOUSE, PULLUVAZHY P.O,
RAYAMANGALAM, ERNAKULAM, PIN- 683541,
REP. BY HER POWER OF ATTORNEY HOLDER SRI N.V.FRANCIS,
AGED 72 YEARS, S/O VARKEY, NANGELIMALIL HOUSE,
PULLUVAZHY P.O, RAYAMANGALAM, ERNAKULAM, PIN- 683 541.
BY ADVS.T.M.RAMAN KARTHA
MANJULA NAIR
REVATHY M.A.
GREESHMA T.G.
RESPONDENT/RESPONDENT:
NOBLE THOMAS, S/O K C STHANISLAVOSE,
KALAMBADAN HOUSE, KUNNATHUNADU TALUK,
VENGOOR VILLAGE, NEDUNGAPRA P.O,
ERNAKULAM DISTRICT, PIN 683 545
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Devan Ramachandran. J.
The appellant calls into question the correctness of the judgment
of the learned Family Court, Muvattupuzha in O.P.No.91/2024.
2. The appellant is stated to be the mother of three minor girls
and she filed the Original Petition seeking their permanent custody.
She says that, she averred specifically before the Trial Court that she
has migrated to the United Kingdom in June 2022; and that she is
working there with a good income, thus being fully able and capable of
providing the best to her children.
3. The petitioner says that, even though the learned Family Court
also found as afore and appointed her as the guardian of her children,
it reserved visitorial rights over them to the respondent - father every
second Saturday; and that this has now incapacitated her from taking
them along with her to the United Kingdom. She contends that, this
has created an unfortunate situation, where the children are denied
the company of both parents; and asserts that this was not what the
learned Family Court intended because, it has found without any doubt
that the children will be better taken care of by her in the United
Kingdom. She thus prays that the judgment of the learned Family
Court, to the extent impugned, be set aside; and she be allowed to
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take the children to the U.K.
4. We notice from the endorsements on file that service of
summons to the respondent is complete. However, he has chosen not
to be present before us personally, nor even to be represented
through counsel; and this has been the situation every time this
matter was last listed.
5. We have examined the impugned judgment, as also the
documents produced in evidence - copies of which have been handed
over across the bar by the learned counsel for the appellant.
6. It is indubitable from the judgment that the learned Family Court
has found that the mother is better suited to be in the permanent
custody of the children, and it has, in fact, issued such a declaration;
with a concomitant direction to the father to hand them over to her
within a period of one month. However, in spite of the fact that the
appellant - mother had specifically stated before the learned Family
Court that she has migrated permanently to UK as early as in June
2022; and that she is working there, with an income sufficient to take
care of the children's interests, the said Court does not appear to have
specifically taken the same into account, while giving her their
permanent custody.
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7. This could be because, after averring that she had migrated to
the U.K., the petitioner - mother did not specifically seek permission
to take the children with her to U.K., when she made a request that
she be made their permanent guardian.
8. We certainly find favour with the submissions
of Smt.Revathy.M.A., the learned counsel for the petitioner - mother,
that her client's intent was clear; and that the same ought to have
been granted for by the learned Family Court.
9. The documentary evidence on record are merely the marriage
certificate of the parties; and the birth certificates of the children.
There is hardly any contest from the respondent's pleadings to the
averments and assertions of the appellant. In fact, this is why the
learned Family Court had allowed permanent custody and legal
guardianship of the children to the appellant.
10. However, as rightly argued by Smt.Revathy.M.A., after having
ordered so, the learned Family Court has reserved visitorial rights
over the children on the respondent on certain specified days every
month. This surely places the petitioner - mother in a very piquant
situation, since though she has been given permanent custody of the
children, she is now incapacitated from taking them along with her
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because, by doing so, the provisions of visitorial rights will stand
violated.
11. That said, on 23.1.2025 when this matter was listed the appellant
offered to appear before us along with the children.
12. We interacted with the children today, when they appeared
before us; and pertinently, they informed us that, except the elder
among them, the other two are still in the custody of the father; and
that he permitted them to accompany the former to this Court. They
categorically informed us that their father - the respondent herein,
has allowed them to travel to the UK along with their mother and that
he has not laid any restriction on them. They reiterated that their
desire and intent is to be with their mother permanently, to travel with
her to the U.K. and to settle with her. They were, however, open to
talking to their father on phone and even meeting him whenever they
are in India; and added that he does not stand in the way of any such
arrangement.
13. Hearing the children as above, we are confused why the father
has not chosen to appear before us. We can, however, only construe
whatever the children have told us, to be accurate and true.
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14. In the above circumstances, we find in favour of the appellant
and hence allow this appeal; thus modifying the impugned judgment,
declaring the appellant to be the sole legal guardian of the children by
names Nia Philomina Noble, Nidhi Philomina Noble and Neha Mariam
Noble, thus being entitled to their permanent custody.
15. Consequently, direction No.(c) in the impugned judgment is
vacated, though we leave full liberty to the respondent - father to talk
to the children, subject to their consent and without disturbing their
curricular requirements, on video/voice call on 9447173055 - which
number has been made available to us by the learned counsel for the
appellant. We also grant permission to the respondent to meet the
children, again with their consent, whenever they are in India, subject
to their convenience, or to approach this Court or the learned Family
Court with apposite applications to facilitate the same, if it becomes
so warranted in future.
This appeal is ordered thus.
SD/-
DEVAN RAMACHANDRAN, JUDGE
SD/-
M.B. SNEHALATHA, JUDGE
jes
