Bibin Mary Abraham v. Prince V. Elias

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 13[TH] DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 O.P.(FC) NO. 175 OF 2023** **AGAINST THE ORDER DATED 31.03.2023 IN I.A.NO.4 OF 2023 IN O.P.(G&W) NO.320 OF 2021 ON THE FILE OF THE FAMILY COURT,** ## **THIRUVALLA** **PETITIONER:** **BIBIN MARY ABRAHAM AGED 35 YEARS** **D/O ABRAHAM JOSEPH, KANNANKERIL HOUSE, THENGELI MURI, KUTTOOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN – 689106.** **BY ADVS. BHANU THILAK S.R.PRASANTH** **RESPONDENT:** **PRINCE V. ELIAS, AGED 43 YEARS, S/O REV. V.O ELIAS, VALLYAPARAMBIL HOUSE, KUNNAMKERIL P.O, VELIYANADU VILLAGE, KUTTANANDU TALUK, ALAPPUZHA DISTRICT-686106 NOW RESIDING AT FLAT NO. 2905, 29TH FLOOR, MARATHON NEXZONE, BLDG S1 WING A, D N HIGHWAY, 4B-NR PALSPE PHT, KOLKHE PANVEL, RAIGARH, MAHARASHTRA, PIN – 410206.** **BY ADVS. C.S.MANILAL S.NIDHEESH** 2 O.P.(FC) No.175 of 2023 **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 10.04.2023, THE COURT ON 13.04.2023 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.175 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner is the mother of three children, William Prince, Winston Prince and Wilfred Prince, who were born on 02.12.2011, 04.12.2014 and 12.07.2015 respectively. The respondent is the father. In O.P.(G&W) No.320 of 2021 filed by the petitioner before the Family Court, Thiruvalla declaring her the guardian of children and also to get custody of the eldest son, who is now in the custody of the respondent, a counter claim was filed by the respondent. He claims custody of the younger two children, who are now in the custody of the petitioner. The respondent in that original petition has filed I.A.No.4 of 2023 for getting interim custody of two younger children. The Family Court as per Ext.P8 order dated 31.03.2023 allowed the said interlocutory application subject to a few conditions. The petitioner challenges the said order in this original petition filed under Article 227 of the Constitution of India. 4 O.P.(FC) No.175 of 2023 2. On 05.04.2023, notice on admission was directed to be served on the respondent. The respondent entered appearance through his learned counsel. The respondent has filed a counter affidavit. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The petitioner-mother is now abroad. She is pursuing her Post Graduation in the United Kingdom. She was earlier working in I.B.M. at Bangalore. The respondent-father is working as a Superintending Engineer in ONGC at Panvel in Mumbai. The elder son, William Prince, has been with the respondent and studying in a school at Panvel. The younger children Wincent Prince and Wilfred Price are studying in a school at Thiruvalla. They were with their mother. However, in September, 2022 the mother, petitioner, went abroad to pursue her Post Graduation. In this Original Petition, the petitioner stated that her course will be over in September, 2023 and she would be able to come back in October, 2023. 5 O.P.(FC) No.175 of 2023 In such circumstances, younger children are staying with their maternal grandparents and studying in a school at Thiruvalla. 5. Both sides raised several contentions and allegations against each other with respect to their marital relationship and reasons for the estrangement. Apart from O.P.No.320 of 2021, several other cases are also pending between them. The petitioner filed O.P.(Divorce) No.358 of 2020 for divorce. She also filed O.P.(Patrimony) No.331 of 2021 claiming return of gold and realisation of money. M.C.No.103 of 2021 was also filed by the petitioner. The respondent filed O.P.(Divorce) No.642 of 2021 seeking a decree of dissolution of marriage. He has filed a counter claim in O.P.(G&W) No.320 of 2021 as well. 6. In **Rohith Thammana Gowda v. State of Karnataka & others [AIR 2022 SC 3511]** the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an inquiry regarding custody of children. The Apex Court also explained how a desire 6 O.P.(FC) No.175 of 2023 ## expressed by the child has to be approached. It was held: “8. At the outset we may state that in a matter involving the question of custody of a child it has to be borne in mind that the question ‘what is the wish/desire of the child’ is different and distinct from the question ‘what would be in the best interest of the child’. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to ‘what would be in the best interest of the child’ is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child. In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, ‘what would be the best interest of the child concerned’. In other words, welfare of the child should be the paramount consideration. In that view of the matter we think it absolutely unnecessary to discuss and deal with all the contentions and allegations in their respective pleadings and affidavits.” 7 O.P.(FC) No.175 of 2023 7. The Apex Court held that when deciding custody of a child, ordinarily, it is unnecessary to discuss and deal with all the contentions and allegations in their respective pleadings. What is important is the welfare of the child. The court has to look into all the attending circumstances to decide at whose custody the welfare of the child can be best ensured. 8. Admitted facts are that the elder son is now at Panvel, Mumbai and younger two children are at Thiruvalla. The mother is abroad. Therefore, maternal grandparents are alone there to look after the affairs of the younger children. That results in separation of the eldest one from the other two children. In the absence of the mother to personally take care of the younger children, it is appropriate to allow the father to be in custody of them, at least during the period of absence of the mother. If the children are able to live together, that will certainly strengthen their brotherhood and will be helpful to the welfare of all the children. The Family Court after taking into account those aspects in the light of the law laid down by 8 O.P.(FC) No.175 of 2023 ## this Court in **Sobhana Nair K.N. v. Shaji S.G.Nair [2016 (1) KLJ 266]** and **Vishnu P. Naick v. Nayana [2022 (7)** **KHC 457]** passed Ext.P8 order. The directions regarding the interim custody of the children are as follows:- “1. The petitioner shall produce the eldest son named William Prince who is in custody of the petitioner at the place where the other two children named Winston Prince and Wilfred Prince are presently residing at the address of the petitioner in OP(G&W) 320/2021 enabling all the children to have interaction and stay together for a period of one week from 3 P.M on 5/4/2023 to 3 PM on 12/4/2023 and thereafter the minor younger children are given in custody of the petitioner enabling them to have joint residence with the eldest minor son named William Prince at his place of residence as mentioned in this petition till the disposal of the above OP. 2. The petitioner shall produce all the above three children at the residence of the petitioner in OP as and when the mother of the minor children are available in station, for a period of five days on prior notice being communicated by the petitioner in OP to the respondent in OP without affecting the education or school timings of the children. 3. Both parties to the above litigation are permitted to have interaction with the three minor children as referred above through video call and audio call during 6 9 O.P.(FC) No.175 of 2023 P.M. to 7 P.M and during such interaction, grandparents on either side also can interact with the children. 4. The petitioner shall produce all the above minor children at the house of the petitioner in OP once in three months enabling them to reside with the grandparents of the petitioner in OP for two days without obstructing their normal study and education schedule. 5. None of the parties shall act against the welfare or interest of any of the children and utmost care shall be given to ensure due health and hygiene to them. 6. In case of inability of the parties to comply with the time and place of interaction, the same shall be communicated in advance to the other party and thereupon the time for interaction will start from the time the inability as communicated ceases.” 9. The aforesaid directions are certainly helpful to cater to the welfare of the children. We are of the view that the said directions issued by the Family Court is best suited in the circumstances in which the children are now placed. Clause (2) says that when the petitioner-mother is available in station, she shall be allowed to be in custody of the children for a period of five days; of course, without affecting the studies of the children. We are of the view that the period of 10 O.P.(FC) No.175 of 2023 such custody can be enhanced to ten days; provided the studies of the children would not be affected. Except that modification, Ext.P8 order does not require interference by this Court in the exercise of the powers under Article 227 of the Constitution of India. Accordingly, this Original Petition is disposed of. Ext.P8 order dated 31.03.2023 is confirmed subject to the modification that if the mother is available in her native place, the respondent shall entrust the custody of the children to her at her residence at Thiruvalla for a period of ten days; provided the studies of the children would not thereby be affected. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 11 O.P.(FC) No.175 of 2023 ## **APPENDIX OF OP (FC) 175/2023** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE OP (GW) NO.320/ 2021 FILED BEFORE THE FAMILY COURT, THIRUVALLA** - **EXHIBIT P2 TRUE COPY OF THE COUNTER CLAIM/WRITTEN STATEMENT IN OP(G&W) NO. 320/2021 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THIRUVALLA** - **EXHIBIT P3 TRUE COPY OF THE I.A NO. 3/2022 IN OP(G&W) NO. 320/2021 FILED BEFORE THE FAMILY COURT, THIRUVALLA** - **EXHIBIT P4 TRUE COPY OF ORDER DATED 24-12-2022 IN I.A NO. 3/2022 IN OP(G&W) NO. 320/2021 OF THE FAMILY COURT THIRUVALLA** - **EXHIBIT P5 TRUE COPY OF I.A NO. 4/2023 IN OP(G&W) NO. 320/2021 FILED BY THE RESPONDENT HEREIN BEFORE THE FAMILY COURT, THIRUVALLA** - **EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN TO I.A NO. 4/2023 IN OP(G&W) NO. 320/2021 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THIRUVALLA** - **EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 14-03-2023 IN OP(FC) NO. 116/2023 OF THIS HON'BLE COURT** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 31-032023, I.A NO. 4/2023 IN OP(G&W) NO. 320/2021 OF THE FAMILY COURT, THIRUVALLA** 12 O.P.(FC) No.175 of 2023 ## **EXHIBIT P9 TRUE COPY OF THE OP TICKET OF THE RESPONDENT** ## **RESPONDENT EXHIBITS** **EXHIBIT-R1(A) TRUE COPY OF THE INTERLOCUTORY APPLICATION WITH AFFIDAVIT IN I.A.NO.8/2023 IN OPGWNO.320/2021 FILED BEFORE THE FAMILY COURT, THIRUVALLA, DATED 22/3/2023 BEFORE THE HONOURABLE FAMILY COURT, THIRUVALLA** **EXHIBIT-R1(B) TRUE COPY OF THE CHIEF AFFIDAVIT SWORN BY THE PETITIONER DTD.26/3/2023** **EXHIBIT-R1(C) TRUE COPY OF THE OBJECTION TO THE INTERLOCUTORY APPLICATION I.A. NO.8/2023, DTD. 30/3/2023 EXHIBIT-R1(D) TRUE COPY OF THE CLASS MESSAGE PUBLISHED IN SCHOOL WHATSAPP GROUP**