Dileep Marath Vasudevan v. Bindu Kalavambara Aravind

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 1ST DAY OF NOVEMBER 2022/10TH KARTHIKA, 1944 O.P.(FC) NO. 426 OF 2022** **AGAINST THE ORDER DATED 04.07.2022 IN I.A.NO.8 OF 2022 IN O.P.NO.186 OF 2022 OF THE FAMILY COURT, THRISSUR PETITIONER:** **DILEEP MARATH VASUDEVAN, AGED 49 YEARS, S/O.M.R.VASUDEVAN, MARATH HOUSE, EDAMUTTAM P.O., THRISSUR, PIN - 680 568, NOW RESIDING AT : ANOTECH ENERGIES, SINGAPORE, 160, ROBINSON ROAD, 21-04 SBF CENTRE, SINGAPORE - 068914** **REPRESENTED BY POWER OF ATTORNEY MARATH PRATHEEP, AGED 55 YEARS, S/O.VASUDEVAN M.R., MARATH HOUSE, P.O. EDAMUTTAM, VALAPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR, PIN – 680568.** **BY ADVS.** **S.SREEKUMAR (SR.) THOMAS P.KURUVILLA P.MARTIN JOSE P.PRIJITH MANJUNATH MENON R.GITHESH HARIKRISHNAN S.** 2 O.P.(FC) No.426 of 2022 **RESPONDENT:** **BINDU KALAVAMBARA ARAVIND, AGED 43 YEARS, D/O.ARAVINDAKSHAN, REPUBLIC ROAD, NORTH PARAVUR POST, ERNAKULAM - 683 513, NOW RESIDING AT SANTHITHEERAM, CHETTUPUZHA POST, PULLAZHY VILLAGE, KANNAPURAM, THRISSUR TALUK, PIN – 680012.** **BY ADVS. HASEENA KUNJOONJU RAJIT V.V.JOY** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 17.10.2022, THE COURT ON 01.11.2022 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.426 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The petitioner is the respondent in O.P.No.186 of 2022 on the file of the Family Court, Thrissur. The respondent filed the said O.P. for the custody of the minor daughter, aged 14 years. She had also filed I.A.No.8 of 2022 in that O.P. seeking permission of the court to take the minor child along with her to Germany. As per the order dated 04.07.2022 I.A.No.8 of 2022 was allowed. Ext.P8 is the order. The petitioner challenges Ext.P8 in this Original Petition filed under Article 227 of the Constitution of India. 2. On 26.07.2022, this Original Petition was admitted to file and operation of Ext.P8 order was stayed. The respondent entered appearance through her counsel. 3. Heard the learned Senior Counsel Sri.S.Sreekumar, appearing on instructions for the petitioner and the learned counsel appearing for the respondent. 4. The petitioner is in Singapore. The respondent along with the child left for Germany. On 26.09.2022, this 4 ## O.P.(FC) No.426 of 2022 Court directed both parties to appear before this Court on 10.10.2022 online. In terms of the said order, both of them appeared on that date. Considering the nature of issues involved, we decided to have the proceedings in-camera and the parties were directed to appear online at 4.30 p.m. on 17.10.2022. Both of them and the child appeared accordingly and the proceedings on 17.10.2022 was conducted in-camera. 5. We have interacted with the child, the petitioner and the respondent. The child is now in the IX standard. She is yet to join the school, since her name is on the waiting list. She awaits admission in the school and in the meantime she is attending an on-line course. She expressed her strong desire to be with the mother and continue in Germany. Both the petitioner and the respondent hurled allegations at each other during the interaction. 6. The respondent filed a counter affidavit and also I.A.No.1 of 2022 seeking a clarification that the order of stay dated 26.07.2022 does not prohibit her from taking the minor 5 O.P.(FC) No.426 of 2022 to Germany. It is stated in the affidavit filed in support of the petition that the petitioner was compelled to leave for Germany owing to the pressure of the situation, especially that the period of her Visa would have expired on 31.08.2022. She has produced Ext.R1(t) in order to substantiate that in order for getting extended permission for her stay in Germany, she had to rush to Germany. It is also contended that the child, who is a bright student, had to be enrolled in the school in Germany for which she had to rush abroad. 7. As per the order dated 04.07.2022 in I.A.No.8 of 2022 the respondent was allowed by the Family Court to take the minor child along with her to Germany. Operation of that order was however stayed by this Court on 26.07.2022. The learned Senior Counsel appearing for the petitioner would submit that whatever be the exigency, the respondent should have honored the order of this Court and for her act of disobedience of the order dated 26.07.2022 stern action is required. 6 O.P.(FC) No.426 of 2022 8. The learned counsel appearing for the respondent would submit that only because there was not enough time to file an application to get permission from this Court, she went to Germany and immediately thereafter she filed I.A.No.1 of 2022. 9. During interaction, the child spoke rationally and decisively. She desired to continue in Germany along with her mother. She stated that it is necessary also to continue in Germany to pursue her education. It is also her version that she did not want to go along with her father. 10. The petitioner stated that being the father, he should be afforded with an opportunity to interact with the child, even if interim custody is denied to him. ## 11. In **Yashita Sahu v. State of Rajasthan [(2020)** **3 SCC 67]** the Apex Court held that law is well settled by a catena of judgments that, while deciding matters of custody of a child, primary and paramount consideration is the welfare of the child. If the welfare of the child so demands then 7 O.P.(FC) No.426 of 2022 technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to custody of the child. The court must therefore be very wary of what is said by each of the spouses. 12. In **Rohith Thammana Gowda v. State of Karnataka & others [(2022) SCC Online SC 937],** the Apex Court reiterated the law that the welfare of the children is of paramount consideration in an enquiry regarding custody of children. The Apex Court after referring to the law laid down in **Nithya Anand Raghawan v. State (NCT of Delhi)** 8 O.P.(FC) No.426 of 2022 **& another [(2017) 8 SCC 454]** explained the parameters to be reckoned with while deciding the question of interim custody in a case where there occurs change in the place of residence of children. 13. The child is now aged 14 years. She is matured enough to take a decision as to with whom among the parents she has to stay. We noticed that there arose a criminal case with the allegation that she was molested by the petitioner. The petitioner is now in Singapore and the child is in Germany. Taking into account all such aspects and the submissions of the counsel on either side, we are of the view that no interference with the impugned order is required. 14. For going abroad the respondent should have to buy tickets and make a lot of other arrangements. So it cannot be said that she started left for Germany on a decision in haste. She had no case that she was unaware of the order of stay dated 26.07.2022. Hence, she should have informed this court the need of traveling abroad and obtained 9 ## O.P.(FC) No.426 of 2022 permission, but she did not. That act is certainly disobedience of the order dated 26.07.2022. She is reminded that she is subject to the jurisdiction of this Court, wherever she is. We strongly deprecate the conduct of disobeying the order. However, considering the future and interest of the minor, we refrain from initiating action against the respondent for such disobedience. The Original Petition is accordingly dismissed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.426 of 2022 ## **APPENDIX OF OP (FC) 426/2022** **PETITIONER EXHIBITS** - **EXHIBIT P1 TRUE COPY OF O.P.NO.1896 OF 2019 FILED BEFORE THE FAMILY COURT, THRISSUR DATED 27-09-2019** - **EXHIBIT P2 TRUE COPY OF ORDER DATED 14-10-2019 IN O.P.NO.1896 OF 2019 OF FAMILY COURT, THRISSUR** - **EXHIBIT P3 TRUE COPY OF G.O.P.NO.186 OF 2022 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THRISSUR ON 21-01-2022** - **EXHIBIT P4 TRUE COPY OF O.P.NO.1282 OF 2022 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, THRISSUR** - **EXHIBIT P5 TRUE COPY OF FIR IN CRIME NO.427 OF 2022 OF THRISSUR WEST POLICE STATION DATED 23-4-2022** - **EXHIBIT P6 TRUE COPY OF I.A.NO.8 OF 2022 IN G.O.P.NO.186 OF 2022 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THRISSUR** - **EXHIBIT P7 TRUE COPY OF OBJECTION FILED BY THE PETITIONER TO EXHIBIT.P6** - **EXHIBIT P8 TRUE COPY OF ORDER IN I.A.NO.8 OF 2022 IN O.P.NO.186 OF 2022 DATED 04-07-2022** - **RESPONDENT EXHIBITS** - **EXHIBIT-R1(A) TRUE COPY OF THE DEED OF WILL DATED 15/7/2022 NO.134/III/2020 OF SRO AYYANTHOLE.** 11 O.P.(FC) No.426 of 2022 **EXHIBIT-R1(B) TRUE COPY OF THE BACHELOR DEGREE CERTIFICATE DATED 29/11/2001.** **EXHIBIT-R1(C)** **TRUE COPY OF THE CERTIFICATE OF MASTER DEGREE IN BUSINESS ADMINISTRATION MARKETING AND SYSTEMS FROM BANGALORE UNIVERSITY, DATED 2/8/2005.** **EXHIBIT-R1(D) TRUE COPY OF THE EXPERIENCE CERTIFICATE AND RESUME** **EXHIBIT-R1(E)** **TRUE COPY OF THE UNIVERSITY STUDENT CONTRACT OF UNIVERSITY OF EUROPE BERLIN CAMPUS GERMANY** **EXHIBIT-R1(F)** **TRUE COPY OF THE CONFIRMATION OF PAYMENT DATED 15.3.2022.** **EXHIBIT-R1(G)** - **TRUE COPY OF THE ACCOMMODATION SUPPORT LETTER DATED 3.12.2021.** **EXHIBIT-R1(H)** **TRUE COPY OF THE MANDATORY PHYSICAL PRESENCE TO JOIN ON CAMPUS COURSES DATED 2.12.2021.** **EXHIBIT-R1(I)** **EXHIBIT-R1(J)** **TRUE COPY OF THE EMAIL RECEIVED FROM DEUTSCH IN BERLIN (LANGUAGE CERTIFICATE) DATED 11.7.2022 TRUE COPY OF THE APPOINTMENT LETTER OF THE CONSULATE GENERAL OF THE FEDERAL REPUBLIC OF GERMANY AT BANGALORE DATED 10/2/2022.** **EXHIBIT-R1(K)** **TRUE COPY OF THE TRAVEL GUARD POLICY DATED 1/2/2022.** **EXHIBIT-R1(L)** **TRUE COPY OF THE SCHOOL DETAILS OF THE MINOR CHILD.** 12 ## O.P.(FC) No.426 of 2022 **EXHIBIT-R1(M) TRUE COPY OF THE VISA OF GERMAN FEDERAL REPUBLIC ALLOWED TO THE RESPONDENT. EXHIBIT-R1(N) TRUE COPY OF THE CHECK LIST FOR GERMAN NATIONAL VISA FOR MINOR DATED 30.11.2021. EXHIBIT-R1(O) TRUE COPY OF THE F.I.R. 427/2022 UNDER POCSO ACT AGAINST PETITIONER.**