Jyothy Anthraper v. Tomy Joseph and Johny Joseph

## **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 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945** **OP (FC) NO.9 OF 2023** **AGAINST THE ORDER IN I.A NO.7230 OF 2022 IN O.P NO.2711 OF 2019 ON THE FILE OF FAMILY COURT,ERNAKULAM DATED 24.12.2022** ## **PETITIONER/PETITIONER/PETITIONER:** **JYOTHY ANTHRAPER** **AGED 35 YEARS** **D/O. KURIAN ANTHRAPER, ANTHRAPER HOUSE, HOUSE NO XI/4/E KARUMALLOOR PANCHAYATH, NEAR JYOTHI NIVAS SCHOOL U.C. COLLEGE P.O., ALUVA, ERNAKULAM 683 102, PIN - 683102** **BY ADVS. C.G.PREETHA N.G.ANITHA DR.ABHILASH O.U.** ## **RESPONDENT/RESPONDENTS/RESPONDENTS:** **1 TOMY JOSEPH AGED 40 YEARS S/O.LATE JOSEPH JOHN SRAMPICAL HOUSE, KUVEMPU ROAD, SHIMOGA KARNATAKA 577 201** **2 JOHNY JOSEPH AGED 53 YEARS S/O.LATE JOSEPH JOHN SRAMPICAL HOUSE, KUVEMPU ROAD, SHIMOGA KARNATAKA, PIN - 577201** **BY ADVS. BOBY MATHEW K.MEERA(K/587/1991)** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 07.03.2023,THE COURT ON 22.03.2023 DELIVERED THE FOLLOWING:** 2 O.P(FC) No.9 of 2023 ## **J U D G M E N T** ## P.G.Ajithkumar, J. The petitioner filed O.P.No.2711 of 2019 before the Family Court, Ernakulam for appointing her the legal guardian of her children Ethen Joseph Tomy, born on 05.09.2012 and Joanna Maria Tomy, born on 19.04.2017; to allow her to have permanent custody of the children; and for a permanent injunction restraining the respondents from taking away custody of the children. The petitioner filed I.A.No.7230 of 2022 in that original petition seeking an order granting her permission to take the children along with her to Canada. The Family Court as per EXt.P16 order dated 24.12.2022 dismissed that application. The petitioner has filed this original petition under Article 227 of the Constitution of India seeking to set aside Ext.P16. 2. On 12.01.2023, notice was directed to be served on the respondents. The respondents entered appearance through their learned counsel. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 3 O.P(FC) No.9 of 2023 respondents. 4. Marriage between the petitioner and the 1[st] respondent was solemnised on 06.02.2010 at Bangalore. They thereafter went to Canada. Both the children were born to them in Canada. That helped the children to have citizenship of Canada. The 1[st] respondent also is a citizen of Canada. The petitioner came back to India and did her M.Sc course in speech language pathology and audiology. The 1[st] respondent also subsequently returned along with the children. Children are now studying at Jyothi Nivas Public School, Aluva. They are staying along with the petitioner at Auva, where her parents are also residing. The petitioner filed I.A No.6347 of 2019 in O.P.No.2711 of 2019 for getting a temporary injunction to restrain the respondents from taking away the custody of the children. An order of injunction was granted, a copy of which is Ext.P3. The 1[st] respondent filed I.A No.1940 of 2021 for getting an order prohibiting the petitioner from removing the children from the jurisdiction of the Family Court, Ernakulam. The Family Court ordered status quo with respect to the custody of the children; a copy of that order is 4 ## O.P(FC) No.9 of 2023 Ext.P7. There were also petitions filed by either side with respect to the interim custody of the children. While so, the petitioner filed I.A No.7230 of 2022 seeking permission to relocate the children to Canada. 5. Petitioner would contend that she has a permanent resident status in Canada. The children are Canadian citizens. They are accustomed to the environmental conditions of Canada. They have to live in the social and cultural milieu of Canada. They will get standard education and proper upbringing in Canada. The petitioner has to be in Canada atleast ten months prior to expiry of her PR status, which is in August 2023. She can have employment in Canada and she would be able to ensure welfare of the children. On the basis of such pleadings she seeks permission to take the children to Canada. 6. The 1[st] respondent filed a detailed counter statement opposing the application. Almost all the contentions in the affidavit filed in support of the application except regarding the marital relationship and paternity of the children are denied. He would contend that it was incorrect to say that 5 O.P(FC) No.9 of 2023 one should be in Canada for a prior period of ten months to renew his or her PR status. The petitioner has no employment or place of abode in Canada. If the children are taken by her to Canada, their education and other matters should be in peril. Several litigations between the parties are pending in the Family Court. If the petitioner is allowed to take the children abroad, the litigation could not be proceeded with. As a consequence of the recalcitrant and hostile attitude of the petitioner, the loan availed by the 1[st] respondent to purchase a house in Canada became overdue and the bank foreclosed the charge resulting in auctioning of the house. Balance auction price is entitled by the 1[st] respondent which amounts to INR 2.40 crores, and it is held in deposit in the bank. The intention of the petitioner going Canada along with the children is to garner the aforesaid amount. Accordingly, the 1[st] respondent seeks to dismiss the application. 7. The Family Court considered the matter in detail in the light of the law laid down by the Apex court in **Yashita Sahu v. State of Rajasthan [AIR 2020 SC 577]** and **Vasudha Sethi and others v. Kiran V.Bhasker and** 6 O.P(FC) No.9 of 2023 **another [AIR 2022 SC 476]** , and held that it was not conducive or beneficial to the interest of the children to take them now to Canada and accordingly dismissed that application. 8. The learned counsel appearing for the petitioner would submit that when the welfare of the children alone is the paramount consideration while passing an order regarding their custody, it is only appropriate to allow the petitionermother to take the children along with her to Canada where she proposes to work. The learned counsel would submit that the petitioner being a professionally qualified person and having PR status, it is quite easy for her to get employment in Canada. It is also pointed out that unless her PR status is saved, her opportunity to go to Canada will be lost forever and in that event, the interest of the children, who are the citizens of Canada will be affected prejudicially. The children were born in Canada and they have Canadian citizenship. That fact is not disputed. Being Canadian citizens, preferential benefits available to them in Canada will certainly cater to their proper education and upbringing. In that view of the 7 O.P(FC) No.9 of 2023 matter, it may be advantageous for the children to go to Canada. But that alone is not enough for proper upbringing of the children and ensure their welfare. 9. Ext.P12 is a copy of I.A No.7230 of 2022. The petitioner averred in the affidavit that she has to go back to Canada and be there for ten months prior to August, 2023 in order to renew her PR status which expires in August 2023. If that is true, her PR status cannot be renewed even if she goes back now to Canada. If that happens, and she takes the children to Canada, not only she but also the children would be put to a precarious situation. The 1[st] respondent however, contended that there is no such condition to renew PR status. Therefore we are not ascribing much relevance to that aspect while deciding this petition. 10. Petitioner has no claim that she has employment in Canada. She hopes to get employment since she has already acquired her professional qualification by obtaining M.Sc in speech language pathology and audiology. She would contend that her relatives are there and therefore it is not difficult for her and children to have accommodation and live there. Those 8 O.P(FC) No.9 of 2023 are only hopes and aspirations of the petitioner. Tangibly, the petitioner has no employment or place of abode in Canada. If, in such a situation, the children are taken by her to Canada, it cannot be expected that their stay and education there would be safe and secure. Even accepting the contention that getting admission for the children is quite easy for, her relatives are in Canada and Government scholarships to the natives are plenty, it cannot be taken for sure that their affairs would be safe and secure. 11. In terms of the direction of the Family Court, the petitioner had filed Ext.P14 statement explaining where the children would be put up and enrolled for education. It is stated that the petitioner proposes to reside in the province of Ontario. No details of the place of residence are furnished. It is further stated that the children would be enrolled either in public school or in catholic school in the province of Ontario. Ontario is a province in Canada. It is an expansive area having several towns with Ottawa as its capital. The statement of the petitioner that the children could be enrolled in some public school or catholic school in the province is quite vague a suggestion to be acted 9 ## O.P(FC) No.9 of 2023 upon. From those proposals itself it is clear that without having a definite idea, the petitioner is attempting to take the children to Canada. The petitioner may go to Canada and find out employment and a place of residence; but without already having such facilities, the petitioner cannot be allowed to take the children to Canada. 12. The allegation of the 1[st] respondent that the intention of the petition is to take the children to Canada to grab INR 2.40 crores now available in bank which is the excess of the price when the bank foreclosed the loan that was availed by the respondent for purchasing his house is denied by the petitioner. Truth or falsity of the said contention has no relevance in order to decide the matter involved in this application. Therefore we leave that contention without making any observations. 13. Going by the principle laid down by the Apex Court in **Yashita Sahu and Vasudha Sethi** which are referred to above, the ultimate concern of the Court is the welfare of the children. In exercise of the parens patriae jurisdiction, the Court has obligation to see that rights of the children are 10 ## O.P(FC) No.9 of 2023 protected. It may be said that the children, being Canadian citizens, it would be advantageous for them to live in Canada. That will help them to accustom with the social and cultural milieu there. Their safety and security are also equally important. Only on ensuring that they can be put in a safe, secure and congenial environment and can be imparted with standard education, the petitioner can be allowed to take the children to Canada along with her. 14. From the facts mentioned above, it emerges that taking the children by the petitioner to Canada now does not enure them any advantage or cater to their welfare. Hence we hold that the petitioner cannot be allowed to take the children to Canada as she prayed in I.A No.7230 of 2022. Order of the Family Court in Ext.P16 does not suffer from any patent illegality or perversity requiring interference by this Court under Article 227 of the Constitution of India. This original petition is accordingly dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE -** Sd/ **P.G. AJITHKUMAR, JUDGE** PV 11 O.P(FC) No.9 of 2023 ## **APPENDIX OF OP (FC) 9/2023** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 THE TRUE COPY OF THE PETITION IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE PETITIONER DATED 18.11.2019** - **EXHIBIT P2 THE TRUE COPY OF THE INJUNCTION PETITION IN I.A.NO 6347 OF 2019 IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE PETITIONER DATED 18.11.2019** - **EXHIBIT P3 THE TRUE COPY OF THE ORDER IN I.A.NO 6347 OF 2019 IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM DATED 18.11.2019** - **EXHIBIT P4 THE TRUE COPY OF THE OBJECTION AND THE COUNTER CLAIM IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE 1ST RESPONDENT DATED 07.12.2022** - **EXHIBIT P5 THE TRUE COPY OF THE PETITION IN I.A.NO 1940 OF 2021 IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE 1ST RESPONDENT DATED 03.04.2021** - **EXHIBIT P6 THE TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A.NO 1940 OF 2021 IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE PETITIONER DATED 12.04.2021** - **EXHIBIT P7 THE TRUE COPY OF THE ORDER IN I.A.NO 1940 OF 2021 IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT,** 12 O.P(FC) No.9 of 2023 **ERNAKULAM DATED 07.05.2021** **EXHIBIT P8 THE TRUE COPY OF THE PETITION IN I.A.NO 1923 OF 2022 IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE 1ST RESPONDENT DATED 05.03.2022** - **EXHIBIT P9 THE TRUE COPY OF THE OBJECTION IN I.A.NO 1923 OF 2022 IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE PETITIONER DATED 07.04.2022** - **EXHIBIT P10 THE TRUE COPY OF THE ORDER IN I.A.NO 1923 OF 2022 IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM DATED 26.04.2022** - **EXHIBIT P11 THE TRUE COPY OF THE JUDGMENT IN O.P. (F.C.)NO 255 OF 2022 ON THE FILE OF THIS HON'BLE COURT DATED 22.08.2022** - **EXHIBIT P12** - **THE TRUE COPY OF THE PETITION IN I.A.NO 7230 OF 2022 IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE PETITIONER DATED 15.10.2022** - **EXHIBIT P13 THE TRUE COPY OF THE OBJECTION IN I.A.NO 7230 OF 2022 IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE RESPONDENTS DATED 15.11.2022** - **EXHIBIT P14 THE TRUE COPY OF THE STATEMENT IN I.A.NO 7230 OF 2022 IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE PETITIONER DATED 28.11.2022** - **EXHIBIT P15 THE TRUE COPY OF THE STATEMENT IN** - **I.A.NO 7230 OF 2022 IN O.P.NO 2711 OF** 13 ## O.P(FC) No.9 of 2023 **2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE PETITIONER DATED 05.12.2022** **EXHIBIT P16 THE TRUE COPY OF THE ORDER IN I.A.NO 7230 OF 2022 IN O.P.NO 2711 OF 2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM DATED 24.12.2022**