Amit T.S. v. Divya M.S. (through minor Advaith)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 25[TH] DAY OF JANUARY 2023 / 5TH MAGHA, ``` ``` 1944 ``` ``` O.P.(FC)NO.50OF 2023 ``` ``` IN I.A.NO.23 OF 2023 IN O.P.NO.1537 OF 2016 ON THE FILE OF THE FAMILY COURT, THRISSUR ``` ``` PETITIONER: ``` ``` AMIT T.S., AGED 40 YEARS, S/O. SOMAN, THANDASSERY HOUSE, PAZHUVIL WEST DESOM & P.O., KURUMBILAV VILLAGE, THRISSUR TALUK & DISTRICT - 680564. REP. BY POWER OF ATTORNEY HOLDER SOMAN, AGED 69, S/O. RAMAN THANDASSERY HOUSE, PAZHUVIL WEST DESOM & P.O., KURUMBILAV VILLAGE, THRISSUR TALUK & DISTRICT, PIN - 680564 ``` ``` BY ADVS. DHANYA P.ASHOKAN M.R.VENUGOPAL S. MUHAMMAD ALIKHAN ``` ## **`RESPONDENTS:`** ``` 1 DIVYA M.S., AGED 34 YEARS, W/O. SWAROOP & D/O. SUKUMARAN, MONEKKATTU HOUSE, KANNARA DESOM & P.O., NEAR COMPANY PADI, PANANCHERY VILLAGE, THRISSUR DISTRICT, PIN - 680652 ``` ``` 2 MASTER ADVAITH AGED 9 YEARS ``` 2 O.P.(FC)No.50 of 2023 ``` S/O. AMITH, THANDASSERY HOUSE, PAZHUVIL WEST DESOM & P.O., KURUMBILAV VILLAGE, THRISSUR TALUK & DISTRICT RESIDING WITH RESPONDENT, PIN - 680564 ``` ``` BY ADV G.SREEKUMAR (CHELUR) ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 25.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 O.P.(FC)No.50 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner-father filed O.P.No.1537 of 2016 on the file of the Family Court, Thrissur, invoking the provisions under Guardians and Wards Act, 1890, seeking permanent custody of the minor child by name, Advaith, who is presently aged 9½ years. The petitioner had earlier approached this Court in O.P.(FC)No.748 of 2019, which was disposed of by Ext.P1 judgment dated 09.11.2022. Paragraphs 22 of that judgment reads thus; “22. Accordingly, we dispose of these Original Petitions, Mat. Appeal and also I.A.No.2 of 2022 in O.P.(FC) No.748 of 2022 in the following terms: i) custody of the child, Advaith will be given to the petitioner from 10.00 a.m. on every Saturday till 2.00 p.m. on the ensuing Sunday during the period when the petitioner is available in station; ii) subject to the above, the custody of the child will continue to be governed by the stipulations in Ext.P1 as modified by the order dated 22.04.2019 in I.A.No.3461 of 2018 for the time being; iii) the child shall not be taken abroad either by the petitioner or by the respondent without the permission of the Family Court, Thrissur; and iv) it is open for the parties to approach the Family Court for modification of the custody order, if there is real and genuine requirement on account of the change in the circumstances.” 2. The petitioner filed I.A.No.23 of 2023 in O.P.No.1537 of 2016, seeking interim custody of the minor 4 O.P.(FC)No.50 of 2023 child from 25.01.2023 to 29.01.2023. The respondent-mother filed counter. By Ext.P6 order dated 23.01.2023, the Family Court dismissed that interlocutory application on the ground that the prayer sought for is not in consonance with the modification granted by this Court in Ext.P1 judgment. Paragraphs 4 and 5 of that order read thus; “4. Thereafter both parties filed separate applications for modification of the custody order. After adducing evidence of both parties this court was pleased to dismiss the applications filed by the petitioner as well as the respondent. The said common order was challenged by both parties before the Hon'ble High Court and as per judgment dated 09.11.2022 the Hon'ble High Court had disposed of the Mat. Appeal as well as the O.P.(FC) filed by the rival parties. As per the said judgment there was a direction to give custody of the minor to the petitioner from 10.00 a.m. on every Saturday till 4.00 p.m. on the following Sunday during the period when he is available in station. Apart from the said modification all other directions given by this court as per modified decree were upheld. After the said judgment dated 09.11.2022, the petitioner has again filed another application for modification of the decree as I.A.No.20 of 2022 on 01.12.2022. The said application is now pending consideration of this court. Thereafter, he has filed the present application seeking custody for few days during the last week of January contending that the presence of the minor is necessary at the time of the marriage 5 O.P.(FC)No.50 of 2023 ceremony of one among his relatives. 5. After the compromise decree dated 24.04.2017, there had been series of petitions filed by the rival parties. Similarly, there were several applications for modification of the decree and the 4[th] among such applications is now pending consideration of this court. As observed earlier, the petitioner in this case has been given sufficient opportunity to have interim custody and interaction with the minor in order to maintain a pleasant and healthy emotional bonding between the father and the son. After disposal of the Mat. Appeal by the Hon'ble High Court, the present application has been filed hardly within a period of 2 months. The reasons stated by the petitioner for getting custody of the minor does not appear to be very much convincing. As mentioned above, there was already a decree and the same was modified twice. Another application for modification of the decree is pending consideration. Since the petitioner's prayer is not in consonance with the modification granted by the Hon'ble High Court, I am not inclined to allow the present application. Hence the I.A is dismissed. 3. Feeling aggrieved, the petitioner is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India, seeking an order to quash Ext.P6 order dated 23.01.2023 of the Family Court in I.A.No.23 of 2023 in O.P.No.1537 of 2016 and to allow interim custody of the minor child, Advaith, to the petitioner-father, during his stay in India. 6 O.P.(FC)No.50 of 2023 4. On 24.01.2023, when this original petition came up Adv. G.Sreekumar Chelur, the learned counsel, who appeared for the respondent-wife in O.P.(FC)No.748 of 2019, which were disposed of by Ext.P1 judgment dated 09.11.2022 and the matter was ordered to be listed today (25.01.2023) at 10.15 a.m. 5. Heard Smt.Dhanya P. Ashokan, the learned counsel for the petitioner and Sri.G.Sreekumar Chelur, the learned counsel who entered appearance for the respondent. 6. The request made by the petitioner-father in I.A.No.23 of 2023 in O.P.No.1537 of 2016, seeking interim custody of the minor child from 25.01.2023 to 29.01.2023 stands rejected by Ext.P6 order dated 23.01.2023, on the ground that the reliefs sought for in that interlocutory application is not in consonance with the modification granted by this Court in Ext.P1 judgment. 7. In **Rosy Jacob v. Jacob A. Chakramakkal** **[(1973) 1 SCC 840]** the Apex Court held that all orders relating to the custody of the minor wards from their very 7 O.P.(FC)No.50 of 2023 nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. Orders relating to custody of wards even when based on consent are liable to be varied by the Court if the welfare of the wards demands variation. 8. Having considered the averments in the affidavit filed in support of Ext.P3 interlocutory application and the nature of contentions raised in Ext.P5 counter filed by the respondent-mother, we are of the view that the reasoning of the Family Court in Ext.P6 order, for rejecting I.A.No.23 of 2023 made by the petitioner cannot be sustained in law. 9. The Family Court, ought to have granted permission to the petitioner-father to have interim custody of the minor child, as sought for in I.A.No.23 of 2023. 10. The learned counsel for the respondent-mother would submit that the mother shall handover custody of the minor child to the petitioner-father today **(25.01.2023) at** **6.00 p.m.** The learned counsel for the petitioner-father would 8 O.P.(FC)No.50 of 2023 submit that the father shall return the minor child to the mother on **29.01.2023 at 5.00 p.m.** The learned counsel on both sides would submit that the venue for handing over the custody of the minor may be the office of the learned counsel for the petitioner. Having considered the submissions made by the learned counsel on both sides, this original petition is allowed by setting aside Ext.P6 order dated 23.01.2023 and granting the petitioner-father interim custody of the minor child from today (25.01.2023) at 6.00 p.m. till 29.01.2023 at 5.00 p.m. The venue for handing over the custody of the minor shall be the office of the learned counsel for the petitioner-father. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** MIN 9 O.P.(FC)No.50 of 2023 ## **`APPENDIX OF OP (FC) 50/2023`** ## **`PETITIONER EXHIBITS`** ## **`Exhibit P1`** ``` TRUE COPY OF THE JUDGEMENT DATED 09/11/2022 IN OP(FC) 748/2019 OF THIS HON'BLE COURT ``` - **`Exhibit P2`** - **`TRUE COPY OF THE IA 20/2022 IN OP 1537/2016 DATED 01/12/2022 ON THE FILES OF FAMILY COURT, THRISSUR BY THE PETITIONER`** - **`Exhibit P3 TRUE COPY OF THE IA 23/2023 DATED 12/01/2023 IN OP 1537/2016 BEFORE THE FAMILY COURT, THRISSUR FILED BY THE PETITIONER`** - **`Exhibit P4 TRUE COPY OF THE CONFIRMED FLIGHT TICKET FROM DUBAI TO COCHIN DATED 24/01/2023`** ``` Exhibit P5 TRUE COPY OF THE OBJECTION DATED 18/01/2023 FILED IN IA 23/2023 ``` - **`Exhibit P6 TRUE COPY OF THE ORDER DATED 23.01.2023 IN I.A.NO.23 2023`** - **`Exhibit P7`** ``` TRUE COPY OF THE CONFIRMED FLIGHT TICKET FROM COCHIN TO DUBAI DATED 20/01/2023 ```