Hirosh Joseph v. Tina Kalayil and Cherian Kalayil and Annamma Cherian

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 21ST DAY OF AUGUST 2017/30TH SRAVANA, 1939 Mat.Appeal.No. 262 of 2017 () ------------------------------ AGAINST THE ORDER/JUDGMENT IN OPG&W 881/2015 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR DATED 18/2/2017 APPELLANT(S/PETITIONER IN OP (G&W): ---------------------------------- HIROSH JOSEPH, AGED 38 YEARS, S/O K.O.JOSEPH, KURIAPARAMBIL HOUSE, KOTTAPURAM PO, THRISSUR PIN 680667. BY ADVS.SRI.T.M.RAMAN KARTHA SMT.K.BINUMOLE THOMAS RESPONDENT(S)/RESPONDENTS: --------------------------- 1. TINA KALAYIL, AGED 31 YEARS, D/O CHERIAN KALAYIL, KALAYIL HOUSE, VEROOR PO, KOONAMTHANAM, CHANGANASSERRY, KOTTAYAM 686104. 2. CHERIAN KALAYIL, KALAYIL HOUSE, VEROOR P.O, KOONAMTHANAM, CHANGANASSERRY, KOTTAYA 686104. 3. ANNAMMA CHERIAN, W/O CHERIAN KALAYIL, DO---DO R1 BY ADV.SRI.K.S.HARIHARAPUTRAN CAVEATOR R2 AND R3 SRI. GEORGE MATHEW. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28-62017, THE COURT ON 21/8/2017 DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** =========================== Mat.Appeal No. 262 of 2017 ================== Dated this, the 21[st] day of August, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the petitioner in OP (G&W) No. 881/2015 of the Family Court, Kottayam at Ettumanoor challenging judgment dated 18/2/2017 along with an order in IA No.1540/2016 in the same Original Petition. 2. The short facts which arise in the appeal are as under:- The appellant married the 1[st] respondent on 22/7/2007 and they had a minor child Jake Joseph Hirosh, born on 26/9/2012. The couple separated in January, 2014 and their marriage was dissolved on 31/1/2015 as per orders passed in OP No.1454/2014. At the time of divorce by mutual consent, there was an understanding that the minor child, who was only aged 2 years, shall remain with the first respondent. 3. The O.P. was filed by the appellant inter alia contending Mat.Appeal No.262/17 -:2:- that the 1[st] respondent did not take any steps to care and attend the minor child and the child was not getting her personal attention. According to him, she was planning to leave India on 28/8/2015 for doing her MBA course, leaving the child with additional respondents 2 and 3, who are none other than her parents. He contended that the 2[nd] respondent is a drunkard and a smoker and if the child is left in their custody, it would affect the child's personality and mental condition. He is a Computer Engineer working at Bangalore and he is having sufficient income to take care of the welfare of the child. He is having his own apartment at Bangalore and his parents are residing with him. He could arrange all facilities for getting admission to a nearby school and can give the best education that is possible. He contended that the first respondent was leaving to Germany in a student visa and her departure would leave the child unattended, which would adversely affect the welfare and wellbeing of the child. 4. The respondents filed objection denying the contentions urged. It is stated that, after divorce, petitioner/appellant never tried to see the child or attended to his Mat.Appeal No.262/17 -:3:- welfare or maintained him. The appellant is residing at Bangalore and his parents are at Kottappuram, Trichur. They also allege that he is a drunkard and drug addict. He even attempted to commit suicide by cutting his vein. It is further contended that the respondent had agreed for a divorce on the undertaking given by the appellant that he would give permanent custody of the minor to the respondent/mother. The child is now being taken care of by the additional respondents 2 and 3. The 1[st] respondent further contended that she had gone to Germany for higher studies and she had applied for visa for the minor child as well. The 2[nd] respondent also denied the fact that he was a drunkard. According to him, he had stopped smoking 3 years back. The first respondent therefore denied the claim of the appellant and according to her, removing the child from the custody of the respondents will adversely affect the welfare of the child. 5. During the pendency of the petition, the respondents filed IA No.1540/2016 for a direction to the appellant to give consent letter to the first respondent for visa and to take the child to Germany. In the said application, she had stated that, for obtaining visa for the child, consent of the father is required. The Mat.Appeal No.262/17 -:4:- appellant filed objection stating that the intention of the first respondent is to take the child along with her in order to remove the child from the jurisdiction of the Court and thereby defeat his right to have custody of the child. 6. Before the Family Court, the appellant was examined as PW1 and he relied upon Exts.A1 to A6. First respondent was examined as RW1 and she placed reliance on Exts.B1 to B5. The Family Court after considering the factual and legal aspects involved in the matter, dismissed the Original Petition and allowed IA No.1540/2016. The first respondent/mother was permitted to take the minor child to Germany. However, it was observed that she has to bring the child to Kerala twice in a year, i.e., every six months and hand over the child to the father for a minimum period of 10 days and she was also directed to deposit `5 lakhs and produce bank guarantee for `5 lakhs each by any of her two relatives who are residing in Kerala before taking the child to Germany. The appellant was also directed to give consent letter to petitioner/mother for visa and to take the child to Germany and in the event of his failure to do so, she is allowed to get permission from the Court to apply for visa. Mat.Appeal No.262/17 -:5:- 7. Learned counsel for the appellant while impugning the aforesaid judgment contended that the intention of the first respondent was to take the child away from the jurisdiction of the Court and in the event of the child being taken to Germany, there is no possibility of the appellant to visit the child at any point of time. The conditions imposed by the Family Court by itself will not be enough to ensure that the child will be brought back from Germany. The first respondent is going to Germany for studies and she is alone. There is no one else to look after the minor child. Permitting the minor child to remain with the custody of grand parents is also not conducive especially when the 2[nd] respondent is a habitual smoker and drunkard. When the father is very much in India, the custody is to remain with him and the contrary allegations against him are absolutely baseless. Learned counsel also placed reliance upon the following judgments. ## (i) _**Febin v. Muhammed Ashraf**_ [2010 (3) KLT 855 (SC)] In this case, the Apex Court held that the High Court seems to have overlooked the fact that as long as the appellant is in Dubai, she is out of the Court's control and the Court has no means to have its directions enforced in a foreign county. That Mat.Appeal No.262/17 -:6:- was a case in which permission was granted to take the minor child to Dubai . ## (ii) _**Rimi Antony v. Deepa Kurian**_ (2013(4) KLT 296). This judgment is relied upon to emphasise the point that even if the ward has been voluntarily given custody to one of the parties to marriage, he/she is entitled to make an application under Section 25 of the Guardians and Wards Act, 1890. 8. On the other hand, learned counsel for the respondents while supporting the stand taken by the Family Court submitted that, being a minor child of very young age, it has to remain with the mother and that was the understanding between the parties. Merely for the reason that she had offered to take the child to Germany does not affect the rights of the appellant in any manner. He relied upon a judgment of the Apex Court in _**Vikram Vir Vohra v. Shalini Bhalla**_ [(2010) 4 SCC 409], where, the Apex Court in a case permitted the respondent/wife to take the child with her to Australia. It was held at paragraphs 18 and 19 as under:- _**“18.** Now coming to the question of the child being taken to Australia and the consequent variations in the visitation rights of the father, this Court finds_ Mat.Appeal No.262/17 -:7:- _that the respondent mother is getting a better job opportunity in Australia. Her autonomy on her personhood cannot be curtailed by the Court on the ground of a prior order of custody of the child. Every person has a right to develop his or her potential. In fact a right to development is a basic human right. The respondent mother cannot be asked to choose between her child and her career. It is clear that the child is very dear to her and she will spare no pains to ensure that the child gets proper education and training in order to develop his faculties and ultimately to become a good citizen. If the custody of the child is denied to her, she may not be able to pursue her career in Australia and that may not be conducive either to the development of her career or to the future prospects of the child. Separating the child from his mother will be disastrous to both._ _**19.** Insofar as the father is concerned, he is already established in India and he is also financially solvent. His visitation rights have been ensured in the impugned orders of the High Court. His rights have been varied but have not been totally ignored. The appellant father, for all these years, lived without the child and got used to it.”_ 9. The principle of law with regard to custody of minor children are very much settled by a long line of judgments. In _**Rosy Jacob v. Jacob A Chakramakkal**_ [(1973) 1 SCC 840], a Mat.Appeal No.262/17 -:8:- three-Judge Bench of the Apex Court held that all orders relating to the custody of minors are to be considered as temporary orders. The Court is entitled to modify the order in the interest of minor child. Even if orders are based on consent, those orders can be varied if the welfare of the child so demands. The above judgment has been followed in _**Dhanwanti Joshi v. Madhav Unde**_ [(1998) 1 SCC 112] and in _**Gaurav Nagpal v. Sumedha Nagpal**_ [(2009) 1 SCC 42]. The focus therefore is on the welfare of the child which is accepted to be of paramount consideration guiding the Court's discretion in custody order. 10. In the case on hand, the child is only about 5 years old and not at the age where he is in a position to make an intelligent assessment of his right to choose between the parents. This is an age where the child should have the company of both father and mother. The Family Court did not find any special circumstance to deny custody of the minor child to either of them. Neither of the parties have contended before us that anyone of them is incapacitated from having custody of the minor child. 11. Apparently, the petitioner/appellant had permitted the mother to have custody of the child since the child was only two Mat.Appeal No.262/17 -:9:- years at the time of their separation. They separated on 31/1/2015. The OP is filed on 11/8/2015 when he understood that she was going abroad for higher studies and she was leaving behind the child with her parents. 12. The mother has now approached the Court stating that she intends to take the child to Germany. The child was born on 26/9/2012 and he is about five years old and if the child is taken abroad, it may not be possible for this Court to ensure compliance of the directions in a foreign country. However, in _**Vikram Vir Vohra**_ (supra), the Apex Court had permitted the child to be taken abroad. But, it is to be noticed that, that was a case in which the minor child was about 8-10 years old and the Apex Court having talked with the child in their chambers found the child quite intelligent and discerning. The child also categorically stated that he wants to stay with his mother. In the said background, it was held that every person has a right to develop his or her potential and the respondent mother cannot be asked to choose between her child and her career. If the custody of the child is denied to her, she may not be able to pursue her career in Australia. Under such circumstances, it was also observed that the Mat.Appeal No.262/17 -:10:- appellant/father for all the years of separation lived without the child and got used to it. 13. Learned counsel for the appellant submits that when the father and mother are very much alive and they are in a position to take care of the minor child, it is not conducive to permit the child to remain with the grand parents. If the mother was in India, there was no problem as such. But, since she is going abroad for her studies, we are of the view that the child should remain with the father and she shall be given visitation rights whenever she is in India. The direction now issued by the Family Court virtually prevents the father from seeing the child occasionally. However, if the respondent/wife is permanently employed in Germany and the child is of an age where he will be in a position to take conscious decision, it shall be open for the parties to seek for modification of the orders before the Family Court. 14. The Family Court observed that when the father is having interim visitation right and overnight custody of the minor for two days on the third Saturday and Sunday of every English calendar month, he can as well visit the child at Germany. This Mat.Appeal No.262/17 -:11:- approach, we do not think will be conducive. The father cannot be forced to visit the child at Germany especially when he is employed in India, at Bangalore and the child was residing within the jurisdiction of this Court. Of course, if he had agreed to such a course, it would have been different. But he does not intend to go abroad every month as observed by the Family Court. In the said circumstances, this appeal is allowed as under:(i) The judgment in OP(G&W) No. 881/15 and order in IA No.1540/16 is set aside. (ii) The permanent custody of the minor child Jake Joseph Hirosh shall remain with the appellant/petitioner. (iii) The respondent/mother shall be permitted to visit the child whenever she wants and custody of the child shall be given to her during the school vacations and whenever she is in India. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- **ANU SIVARAMAN, JUDGE** Rp //True Copy// P.S to Judge