High Court of KeralaDivision Bench2023-03-29Disposed of with modifications to the decree da...

Mat.Appeal No. 222 of 2022, Rakesh B.G. v. Nisha R.

Case / Petition Number:Mat.Appeal No. 222 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
P.G. Ajithkumar
Judgment Date: 2023-03-29
Court Decision / Holding: The Court allowed the petitioner to take the child to Australia with modifications to the decree: the father retains the right to interact with the child via video or audio calls for 15 minutes daily during reasonable evening hours; the parties must inform each other of convenient times; the interim custody/visitation order of 03.03.2022 is modified accordingly; upon return to India, the child may be brought for custody during alternate school vacations for 20 days; half of travel expenses for the father and child will be borne by the father; and the court will consider the father’s right to interim custody during school vacations in future proceedings. The appeal is disposed of with these modifications.
Final Disposition: Disposed of with modifications to the decree dated 03.03.2022.

Parties to the Case

Appellants / Petitioners

Rakesh B.G.

Respondents

Nisha R.

Legal Representation & Advocates

Counsels for Petitioners

• P. Sanjay
• A. Parvath Menon
• Biju Meenattoor
• Paul Varghese (Pallath)
• P. Mohammed Aslam
• Kiran Narayanan
• Prasoon Sunny
• Rahul Raj

Counsels for Respondents

• C. Unnikrishnan (Kollam)

Case Synopsis & Summary

The Kerala High Court, in a Division Bench comprising Justices Anil K. Narendran and P.G. Ajithkumar, hears a matrimonial appeal challenging a Family Court order dated 03.03.2022 that granted permanent custody of the minor child Devapriya to the mother and permitted visitation by the father. The appellant, father Rakesh B.G., contends that because the mother resides abroad, custody ought to be with him, arguing the Family Court did not adequately consider the child’s welfare in light of Supreme Court guidance on custody in Yashita Sahu v. State of Rajasthan and the related Kumar V. Jehangir decision. The respondent mother opposes a rigid return to the father’s custody, seeking to take the child to Australia where she has a temporary skill-shortage visa, contending that she can ensure the child’s welfare abroad and still safeguard the father’s rights of interaction. After mediation efforts failed, the court and parties disputed the best arrangement for maintaining the parent-child relationship while accommodating international travel. In I.A.1 of 2023, the court considered the welfare of the child and modified interim custody and visitation accordingly. The bench ultimately allows the mother to take the child to Australia on specified terms, while imposing safeguards for ongoing contact (daily video/audio calls) and providing for alternate-year custody and shared travel costs, reflecting a welfare-centric, balanced resolution that preserves the father-child bond.

Provisions of Law Cited

Section 19(1) of the Family Courts Act, 1984Family Courts Act, 1984

Legal Doctrines & Maxims

Welfare of the child

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant/father argued that since the respondent mother was abroad, custody ought to be with the father. He contended the Family Court failed to assess the child’s welfare under the welfare principles laid down by the Supreme Court in related custody cases, especially when the mother’s international travel would impact the child’s stability and contact with the father. He relied on Yashita Sahu (2020) and Kumar V. Jehangir to support a custody framework favoring paternal involvement, and sought to overturn the decree granting permanent custody to the mother.

Contentions of Respondents

The respondent/mother argued she should be allowed to take the child to Australia on a temporary visa, asserting she can safeguard the child’s welfare abroad and maintain contact with the father through scheduled visits and communications. She contended that she could manage the child’s affairs, that the father’s concerns of parental alienation are addressed by ensuring daily remote contact, and that the order of the Family Court should be modified to permit travel with explicit safeguards for interaction.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Yashita Sahu v. State of Rajasthan	(2020) 3 SCC 67; 2020 KHC 6045	Mentioned Only	Cited by the appellant to reference welfare principles in child custody, but the judgment’s reasoning does not rely on the ratio of this Supreme Court or Kerala High Court decision; it uses the case to argue welfare considerations rather than adopting its ratio.
Kumar V. Jehangir v. Chethana Ramatheertha	[AIR 2004 SC 1525]	Mentioned Only	Cited as a ground in the appellant's argument, not invoked for binding ratio or as a controlling authority in the court’s decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **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 29[TH] DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 MAT.APPEAL NO. 222 OF 2022 AGAINST THE JUDGMENT DATED 03.03.2022 IN O.P.(G&W) NO.117 OF 2021 ON THE FILE OF THE FAMILY COURT, KOTTARAKKARA APPELLANT/RESPONDENT:** **RAKESH B.G., AGED 37 YEARS, S/O. P. GOPALA PILLAI, RAJISHA BHAVAN,M THAZHAMEL, ANCHAL P.O., KOLLAM-691306. BY ADVS. P.SANJAY A.PARVATHI MENON BIJU MEENATTOOR PAUL VARGHESE (PALLATH) P.A.MOHAMMED ASLAM KIRAN NARAYANAN PRASOON SUNNY RAHUL RAJ P.** ## **RESPONDENT/PETITIONER:** **NISHA R., W/O. RAKESH B.G., 48/574 C, DEVI PRASADAM, MRA 66/2 B, MLA ROAD, ARAMADA P.O., THIRUVANANTHAPURAM-695032.** **BY C.UNNIKRISHNAN (KOLLAM)** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.222 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The appellant is the respondent in O.P.(G&W) No.117 of 2021 on the file of the Family Court, Kottarakkara. He is the father of the minor child Devapriya, now aged 10 years. The respondent is the mother. She has filed the aforesaid original petition. The appellant filed O.P.(G&W) No.1089 of 2018. The Family Court tried both the original petitions jointly. In terms of the common judgment dated 03.03.2022, the respondent was declared to be the guardian of the minor and she is given permanent custody of the child. The appellant is allowed right of visitation. Challenging correctness and legality of the said judgment and the decree, this appeal has been filed under Section 19(1) of the Family Courts Act, 1984. 2. On 24.03.2022, this appeal was admitted to file. The respondent has entered appearance. This Court passed interim orders regarding custody of the child from time to time. This matter was referred for mediation, but the attempt for a settlement was futile. As per the order dated 3 Mat.Appeal No.222 of 2022 29.08.2022, the appellant was allowed custody of the child from 05.09.2022 till 07.09.2022. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 4. The Family Court, Kottarakkara examined PWs.1 and 2 and RWs.1 and 2. Exts.A1 to A10 and Exts.B1 to B14 were received in evidence. After considering the said evidence in detail, decree impugned in the appeal was passed. The appellant assailing the findings in the impugned judgment has filed this appeal. The main contention was that since the respondent was abroad, it is only appropriate for giving custody of the child to him. It is contended that the Family Court did not consider the welfare of the child while allowing permanent custody of the child to the respondent, especially when she is abroad. It is alleged that the Family Court did not adhere to the principles laid down by the apex Court in regard to the custody of the child in **Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 67 : 2020 KHC 6045]** and 4 Mat.Appeal No.222 of 2022 ## **Kumar V.Jehangir v. Chethana Ramatheertha [AIR 2004** **SC 1525].** On the said grounds, the appellant seeks to set aside the judgment and decree. 5. This Court on 14.03.2023, after considering the rival contentions with respect to the custody of the child and also the request of the respondent to take the child abroad, passed a detailed order in I.A.No.1 of 2023. The order reads,- “The respondent in the appeal has filed this interlocutory application seeking permission to take her 10 year old daughter, Devipriya, to Australia along with her and to make appropriate modifications in the order dated 03.03.2022 of the Family Court, Kottarakkara in O.P.(G&W) No.117 of 2021. 2. The child is in the custody of the petitionermother in terms of the order of the Family Court dated 03.03.2022 in O.P.(G&W) No.117 of 2021. The said order is subject to the right of interim custody and visitation provided to the respondent-father, which are follows:- - “3. The visitation right of the respondent/father with the child is allowed on Saturdays and Sundays from 10.a.m. on Saturday till 5 P.M. on Sunday; 4. The father is entitled to get interim custody of the child during the said period; 5 Mat.Appeal No.222 of 2022 5. In addition to he is entitled to the custody of the child during midsummer vacation for first 15 days, on the month of April every year; 6. The respondent/father is allowed to see the child through video call or to call the child through telephone on every day from 5 p.m. to 9 p.m.” 3. The petitioner would contend that she has been issued with a temporary skill shortage visa by the Australian Government and when she travels to Australia, she can take along with her the child also. She would contend that all affairs of the child can be taken care of by her in Australia and she can ensure welfare of the child. She accordingly seeks permission to take the child along with her to Australia. 4. The respondent filed a counter affidavit. He does not oppose the petitioner taking the child along with her to Australia. He, however, expressed his anxiety that once the child is taken abroad, there is possibility of denying him even the right of interaction, which may ultimately result in parental alienation. He further contended that the allegation that he did not exercise his visitation right is false. 5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 6. Insofar as the petitioner’s request for permission to take the child along with her to Australia, the 6 Mat.Appeal No.222 of 2022 respondent does not raise any serious objection. His only concern is that his right of interaction shall not be denied even when the child is abroad. The learned counsel appearing for the respondent further would submit that the right of the respondent to have interaction with the child during her vacation in Australia may be ensured. It is also submitted that depending upon the time zone in Australia, the convenient time for his interacting with the child may be fixed. 7. In the light of the aforesaid contentions of the parties, the petitioner can be allowed to take the child, Devi Priya, along with her to Australia. The respondent shall have right to interact with the child through video or audio call every day for 15 minutes during evening hours. The petitioner as soon as she reaches Australia, shall inform the respondent about the convenient time in the evening for interaction between the child and respondent. The directions regarding interim custody and visitation contained in the order of the Family Court dated 03.03.2022 in O.P.(G&W) No.117 of 2021 are modified to the above extent. I.A.No.1 of 2023 is allowed in the aforesaid terms. 8. Right of the respondent to have interim custody of the child during school vacation will be considered while disposing of Mat.Appeal No.222 of 2022.” 7 Mat.Appeal No.222 of 2022 6. Once the child is taken abroad by the respondent, the provision for giving periodical custody to the appellant is not workable. In such circumstances, the directions in the impugned decree regarding the right of visitation is set aside. However, right of the appellant to have custody of the child during the periods of vacation as well as opportunity to contact the child through audio/video calls should be ensured. Unless the child has opportunity to interact with the appellantfather atleast occasionally, that may have the result in snapping the relationship between the father and the child, which is quite disadvantageous to the proper upbringing of the child. 7. Taking such aspects into account, we direct that the respondent shall bring the child to India, if not every annual school vacations, atleast in the alternate year, during the annual school vacation of the child. During that period, the appellant shall be given custody of the child, if not inconvenient or interruptive to the school days of the child, for a period of 20 days. The respondent is also direcdted to 8 Mat.Appeal No.222 of 2022 ensure that the appellant is able to contact the child through video call every alternate day for 15 minutes between 7.30 p.m. and 8.00 p.m. (Australian time). Half of the travel expenses of the respondent and the child from and to Australia in order to give interim custody of the child for the appellant shall be borne by him. With the aforesaid modifications to the decree dated 03.03.2022, this appeal is disposed of. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 9 Mat.Appeal No.222 of 2022 ## **APPENDIX OF MAT.APPEAL 222/2022** ## **RESPONDENT ANNEXURES** **ANNEXURE R1A ORIGINAL COPY OF THE VISA GRANTS LETTER DATED 14.11.2022 ANNEXURE R1B ORIGINAL COPY OF THE GOLD LOAN DETAILS BEFORE THE INDIAN BANK POOJAPPURA BRANCH DATED 13/06/2022 AND 08/12/2022 ANNEXURE R1C ORIGINAL COPY OF THE DETAILS OF HOME LOAN A/C NO. LBTVM00005940269 ISSUED BY ICICI BANK DATED 24/02/2023 ANNEXURE R1D ORIGINAL COPY OF STATEMENT OF ACCOUNT OF STATE BANK OF INDIA DATED 15/02/2023**