Vidyasagar vs Indira
2025 Latest Caselaw 4675 Ker

Kerala High Court

Vidyasagar vs Indira on 3 March, 2025

Author: Devan Ramachandran

Bench: Devan Ramachandran

                                                       2025:KER:18955
OP (FC) NO. 282 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 MARCH 2025 / 12TH PHALGUNA, 1946

                       OP (FC) NO. 282 OF 2024

        AGAINST THE ORDER DATED 08.04.2024 IN I.A.NO.2/2023 IN OP

NO.533 OF 2023 OF FAMILY COURT, OTTAPPALAM

PETITIONERS/RESPONDENT:

    1       VIDYASAGAR
            AGED 39 YEARS
            S/O OF VIDYADHARAN PORAKKUTHUSSERIL HOUSE,
            CHITTOOR.P.O, AGALI VILLAGE AND AMSOM, ATTAPPADI TRIBAL
            TALUK PALAKKAD DISTRICT, PIN - 678581

    2       VIDYADHARAN
            AGED 63 YEARS
            S/O NARAYANAN, RESIDING AT PORAKKUTHUSSERIL HOUSE,
            CHITTOOR.P.O, AGALI VILLAGE AND AMSOM, ATTAPPADI TRIBAL
            TALUK, PALAKKAD DISTRICT, PIN - 678581

    3       SOORYAKALA
            AGED 58 YEARS
            W/O VIDYADHARAN, RESIDING AT PORAKKUTHUSSERIL HOUSE
            CHITTOOR.P.O, AGALI VILLAGE AND AMSOM, ATTAPPADI TRIBAL
            TALUK, PALAKKAD DISTRICT, PIN - 678581


            BY ADVS.
            SASI M.R.
            N.P.SILPA
            DHARMYA M.S
            S.SAJIT SANAL
                                                         2025:KER:18955
OP (FC) NO. 282 OF 2024



                                    2
            ARYA VALSAN




RESPONDENT/PETITIONER:

            INDIRA
            AGED 36 YEARS
            D/O KRISHNAN, MUDAYIL HOUSE, CHETHALLOOR AMSOM, DESOM,
            POST AND VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT,
            PIN - 678583


            BY ADVS.
            SHARAN SHAHIER
            RAKHY BABY(K/001411/2018)



     THIS   OP   (FAMILY   COURT)   HAVING   BEEN   FINALLY   HEARD   ON
03.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                         2025:KER:18955
OP (FC) NO. 282 OF 2024



                                    3
                               JUDGMENT

DEVAN RAMACHANDRAN (J)

The petitioners are stated to be aggrieved

by Ext.P4 order of the learned Family Court,

Ottappalam, which has allowed IA No.2/2023 in OP

No.533/2023 with certain directions, qua the

custody of the first petitioner's minor children.

2. For the record, the first petitioner is

the father of the children and the respondent is

their mother; while, petitioners 2 and 3 are their

paternal grandparents. The children were aged 10

and 5 at the time when Ext.P4 order was issued, and

they are obviously about a year older now.

3. The above Original Petition was filed by

the respondent - mother, seeking permanent custody

of the children, in which, she filed IA No.2/2023

seeking their interim custody, pending the

said Original Petition. It transpires that

initially the learned Family Court issued Ext.P7

order on 26.08.2023 because, during its interaction 2025:KER:18955 OP (FC) NO. 282 OF 2024

with the children, they harbored "some ill-feeling

in their mind regarding their mother" (sic) and

were not ready to spend overnight with her. As per

the said order, the mother was given day time

custody of the children on all Sundays, leaving her

to seek their overnight custody after 29.10.2023,

saying that this will be decided based on the

progress and result of the interaction process.

4. The mother thereupon insisted that IA

No.2/2023 be heard because the minimum period of

interaction mentioned in Ext.P7 had elapsed by

then; and this led to the learned Family Court

issuing the impugned Ext.P4 order.

5. As per Ext.P4, the children have been

given in overnight custody to the mother on certain

days, as also on holidays and summer vacation; but

this is opposed by the petitioners saying that the

children are unwilling to talk to the mother, much

less go with her. They, however, concede that the

arrangement as per Ext.P7 was continuing until such 2025:KER:18955 OP (FC) NO. 282 OF 2024

time as Ext.P4 was issued.

6. Before we move forward, we must record

that both sides had offered to be present before

this Court along with the children on 19.02.2025

and this was indited by us in our order dated

12.02.2025. On 19.02.2025, both sides, however,

said that they were unable to appear before this

Court and offered that they will be present on this

date.

7. However, today, petitioners 2 and 3 along

with the children were personally present,

explaining that the first petitioner is abroad;

while, the respondent did not appear. We were,

therefore, unable to allow the respondent to

interact with the children in our presence.

8. The learned counsel for the petitioners -

Sri.M.R.Sasi, vehemently asserts that the stand of

the children, that they do not want to be with the

mother regularly and even under an overnight

arrangement, continues even now and that this is 2025:KER:18955 OP (FC) NO. 282 OF 2024

manifest even from Ext.P4 order. He, therefore,

offered that the arrangement in Ext.P7 can be

allowed to continue until such time as the Original

Petition is finally disposed of.

9. However, the learned counsel for the

respondent - Sri.Sharan Shahier, pointed out that,

in paragraph 4 of Ext.P4, the learned Family Court

has correctly found that the children had equal

love and affection for both the parents and that

his client's company for them is indispensable,

being their mother. He thus prayed that Ext.P4 be

left without being interdicted.

10. We notice that another learned Bench

of this Court had interacted with the children,

when they were earlier present personally, on

07.05.2024. The said Bench has recorded as under

in the order of the said day:

"The children born out of the relationship between the 1st petitioner and the respondent are categorical in their submission before this Court that 2025:KER:18955 OP (FC) NO. 282 OF 2024

they wish to continue to reside with their father and with their paternal grandparents".

11. As we said above, the children were

present before us today, and had the respondent

being also present, we could have allowed them to

interact with each other to verify how comfortable

they are with each other. However, this

opportunity has been denied with the respondent

being unavailable.

12. Be that as it may, Ext.P4 order has

been issued by the learned Family Court,

Ottappalam, correctly holding that, in normal

circumstances, the love and affection of both the

parents are essential for the children. However,

in this particular case, when it was found by the

learned Family Court in Ext.P7, that the "children

had some ill feeling for their mother"; and, when

it then has further affirmed that the children

also underwent counselling subsequently, we must 2025:KER:18955 OP (FC) NO. 282 OF 2024

note with some concern the record of the

interaction of the learned Bench of this Court

with them on 07.05.2024, extracted above.

13. When the children appear to be

unwilling to go to the mother for an overnight

arrangement, we cannot be forced to do so,

particularly because they are now 11 and 6 years

respectively in age.

14. No doubt, as we have already said

above, the presence of the mother in the life of

such young children is very important and

therefore, we cannot find fault with the learned

Family Court in having issued Ext.P4; but, we are

of the firm view that it requires some more

deliberation and perhaps interaction with the

children, before they are forced to do something,

which they now say they are not willing. Their

behaviour with respect to their mother will

certainly have to be evaluated correctly and the

report of the counselling and the requirement of 2025:KER:18955 OP (FC) NO. 282 OF 2024

further counselling if any, will also have to be

looked into and assessed by the learned Family

Court.

15. In such perspective, we cannot find

Ext.P4 to be apposite for the children at this

time, though we have little doubt that the learned

Family Court is at full liberty to think about any

other arrangement that would be conducive to their

overall welfare in future.

In the afore circumstances, we set aside

Ext.P4; consequently directing the parties to act

as per the uncontested Ext.P7 order, until such

time as either I.A.No.2/2023 or O.P.No.533/2023 is

finally disposed of, whichever is earlier.

To clarify, since we notice the Original

Petition to be of the year 2023, we are not sure

if the learned Family Court will be able to

dispose it of within a very short time frame; and

if it is unable to do so, then it must take up

I.A.No.2/2023 and issue final orders thereon, 2025:KER:18955 OP (FC) NO. 282 OF 2024

adverting to the factum of Ext.P4 having been

issued almost a year earlier, without any

available delay.

Sd/-

DEVAN RAMACHANDRAN JUDGE

Sd/-

M.B. SNEHALATHA JUDGE

stu/SAS 2025:KER:18955 OP (FC) NO. 282 OF 2024

APPENDIX OF OP (FC) 282/2024

PETITIONER'S EXHIBITS

Exhibit P1 A TRUE COPY OF THE JUDGMENT PASSED IN ORIGINAL PETITION NO.565/2020 DATED 18.06.2021 ON THE FILE OF FAMILY COURT, PALAKKAD

Exhibit P2 A TRUE COPY OF THE AGREEMENT DATED 09/10/2020 ENTERED INTO BY THE FIRST PETITIONER AND RESPONDENT

Exhibit P3 A TRUE COPY OF IA NO.2/2023 DATED 18.07.2023 FILED IN ORIGINAL PETITION NO. 533/2023

Exhibit P4 A CERTIFIED COPY OF THE ORDER DATED 08.04.2024 PASSED IN EXHIBITS P3 APPLICATION ON THE FILE OF FAMILY COURT OTTAPPALAM

Exhibit P5 A TRUE COPY OF THE PETITION FILED BY SECOND PETITIONER TO THE SHO, AGALLY POLICE STATION DATED 16/03/2024.

Exhibit P6 A TRUE COPY OF THE LETTER DATED 01/04/2024 OF STATE PUBLIC INFORMATION OFFICER, AGALI POLICE STATION ALONG WITH RELEVANT PAGES OF THE REGISTER OF PETITIONS OF AGALI POLICE STATION

Exhibit P7 A TRUE COPY OF THE ORDER DATED 26/08/2023 IN IA 02/2023 IN OP 533/2023 OF FAMILY COURT. OTTAPPLAM