Neethu B. v. Rajeshkumar and Rajeshkumar v. Neethu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945** **MAT.APPEAL NO. 815 OF 2022** **AGAINST THE ORDER OP 129/2020 OF FAMILY COURT, OTTAPPALAM** ## **APPELLANT/RESPONDENT IN OP:** NEETHU B.@ NEETHU BABY MATHEW AGED 33 YEARS D/O. PARUKUTTY, TC.11/552, MUSEUM BAINS COMPOUND, KAWDIAR P.O.,KAWDIAR VILLAGE, THIRUVANATHAPURAM NOW RESIDING AT KARTHIKA, MELEPPURATHU HOUSE, MARUTHUR P.O.,PATTAMBI, PALAKKAD DISTRICT, PIN - 679306 BY ADVS. SASTHAMANGALAM S. AJITHKUMAR V.S.THOSHIN SATHEESH MOHANAN P.A.MEERA SREEJITH S. NAIR SEKHAR G. THAMPI Girisankar Jyothikumar Sheena COLIN ANTONY DCRUZ RESHMA M.S ## **RESPONDENT/PETITIONER IN OP:** RAJESHKUMAR AGED 43 YEARS S/O. SOMASEKHARAN NAIR, RESIDING AT MAKARAJYOTHIS, NEAR KOVIL VILA TEMPLE, ALAMCODE P.O.,MELATTINGAL VILLAGE, THIRUVANATHAPURAM, PIN - 695102 BY ADVS. Sikha G Nair . GIRIJA K GOPAL(K/723/1995) ANJANA SURESH.E(K/1263/2021) THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON 7.9.2023, ALONG WITH Mat.Appeal.252/2023, THE COURT ON 17.10.2023 DELIVERED THE FOLLOWING: **MAT.APPEAL NO. 815 OF 2022 and conctd. case** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 MAT.APPEAL NO. 252 OF 2023** **AGAINST THE ORDER OP 129/2020 OF FAMILY COURT, OTTAPPALAM APPELLANT/PETITIONER:** RAJESHKUMAR AGED 43 YEARS S/O. SOMASEKHARAN NAIR, RESIDING AT MAKARAJYOTHIS, NEAR KOVIL VILA TEMPLE ALAMCODE P.O.,MELATTINGAL VILLAGE, THIRUVANANTHAPURAM, PIN - 682102 BY ADVS. GIRIJA K GOPAL SIKHA G.NAIR K.N.VIGY ## **RESPONDENT/RESPONDENT:** NEETHU @ NEETHU BABY MATHEW, AGED 33 YEARS D/O. PARUKUTTY, TC.11/552, MUSEUM BAINS COMPOUND, KAWDIAR VILLAGE, THIRUVANANTHAPURAM NOW RESIDING AT KARTHIKA, MELEPPURATHU HOUSE, MARUTHUR.P.O., PATTAMBI, PALAKKAD DISTRICT, PIN - 679306 BY ADV sasthamangalam S. Ajithkumar S THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON 7.9.2023, ALONG WITH Mat.Appeal.815/2022, THE COURT ON 17.10.2023 DELIVERED THE FOLLOWING: **MAT.APPEAL NO. 815 OF 2022 and conctd. case** **3** ## JUDGMENT ## Amit Rawal, J. 1. This order of ours shall decide two matrimonial appeals preferred by the parties to the lis ie., Mat Appeal Nos.815 of 2022 (Neethu B v. Rajeshkumar) and 252 of 2023 (Rajeshkumar v. Neethu) against the judgment and decree dated 31.10.2022 whereby the Original Petition 129/2020 for the guardianship of ward and counter claim had been allowed in part. The marriage between Neethu and Rajeshkumar was performed on 4.9.2011 and one minor son now aged 10 years was born in their wedlock on 7.11.2012. Both husband and wife could not pull of together with the matrimonial life and had agreed to resolve the marriage by way of mutual consent by way of decree of divorce dated 26.6.2015 in O.P No.1363 of 2014. Though the decree did not contain any terms and conditions but was passed on the basis of a divorce agreement dated 13.9.2014 whereby the husband agreed that the custody of the minor would be with the wife ie., the mother, with an opportunity to meet and interact with the minor child for a span of 8 hours of a day on any of the two Saturdays of every month till the attainment of his majority. 2. Wife on 17.8.2016 remarried an Engineer Professional working as Cyber Security Senior Manager in a Multi National **MAT.APPEAL NO. 815 OF 2022 and conctd. case** **4** Company based in Malaysia and another child, a toddler was born out of the wedlock. Wife is also an Engineer Graduate from Calicut University as evident from the certificate. Husband is working as a Lottery Officer in Kerala Lottery Department. The dispute with regard to the custody and visitation right of the minor arose when wife requested the husband to sign certain affidavits to be produced before Passport authorities for application of visa of the minor child with an aim to take the child to Malaysia and for a better education by putting him to an international school. In view of such piquant situation, husband preferred an OP(G&W) No.2353/2019 before the Family Court, Thiruvananthapuram for permanent custody of the minor child. Thereafter a transfer petition was preferred in this Court by the wife and vide order dated 14.1.2020, the aforementioned petition was transferred to Family Court at Ottappalam and renumbered as OP 129/2020. 3. In the aforementioned proceedings, an I.A No.1 of 2021 on behalf of the mother was submitted to allow the ward to be taken to Malaysia. When the said application did not make any headway, the mother was constrained to approach this Court in OP (FC) No.446 of 2022 for speedy disposal and this Court directed the Trial court to dispose of the same within a period of four (4) weeks. 4. Mother preferred a counter claim viz-a-viz the permanent **MAT.APPEAL NO. 815 OF 2022 and conctd. case** ## **5** custody sought by the respondent husband to take 9 year old minor child outside India so that she can rejoin with her husband. Since the parties were at variance, the trial court, framed the following issues. **1.** Whether the petitioner is entitled to a decree for permanent custody of the minor child as prayed for ? **2.** Whether the respondent is entitled to get herself declared as the guardian of the minor child? **3.** Relief and costs ? 5. In support of the aforementioned issues, appellant wife examined herself as RW1 and her 2[nd] husband RW2 and brought on record Exts.B1 to B31 whereas the Rajeshkumar, first husband examined himself as PW2 and the Principal of school, where the minor is studying as PW1 and brought on record Exts.A1 to A18 and other documents X1 and X2 were marked as court exhibits. The Family Court on the basis of the aforementioned pleadings and the evidence, allowed the original petition in part and counter claim in toto by passing the following directions: In the result, original petition is allowed in part and counter claim is allowed and a decree is passed as follows: 1. The prayer of the petitioner for permanent custody of the minor child is disallowed. 2. The petitioner is allowed to see and interact with the minor child on all 2[nd] and 4[th] saturdays from 2 pm to 4 pm at the premises of the court. **MAT.APPEAL NO. 815 OF 2022 and conctd. case** **6** 3. The respondent/mother is directed to produce the minor child before the Chief Ministerial Officer/in-charge of this court on all 2[nd] and 4[th] Saturdays at 2 p.m and to hand over the custody to the petitioner/father for interaction upon 4 p.m. 4. The petitioner shall pay an amount of Rs.1,000/- (Thousand rupeesonly) to the respondent on all interaction days towards the travel and other expense of the child. 5. Counter claim is allowed and the respondent is appointed as guardian of the minor child Ryan Handel (R.S.Sreejesh Nair) and permanent custody of the minor child is given to the respondent/mother. 6. The respondent is permitted to take the minor child with her to abroad during Onam and Christmas holidays and 30 days period during summer vacation. 7. In case, the respondent takes the minor child with her to abroad during the above period, then before leaving, the respondent shall submit a statement before this court as to the details of country, place of residence with address, duration of stay,etc and shall also file a statement after arrival before this court as to the date of arrival. 8. The parties shall bear their respective costs. 6. Learned counsel appearing on behalf of the mother/wife in support of the appeal No.815 of 2022 raised the following submissions: 1. As per the agreement dated 13.9.2014, husband had agreed to have permanent custody of the minor with the mother ie., the appellant and during all that period never sought the interim custody. 2. He met the ward only less than 10 times during the span of 7 years. ## **MAT.APPEAL NO. 815 OF 2022 and conctd. case** ## **7** **3.** There is a perfect bonding between the mother and the minor as well as the new born child born out of the 2[nd] marriage performed on 17.8.2016. 4. Minor even do not recognize his father Rajeshkumar as he did not do anything for the welfare of the minor child. 5. At the time of the settlement, husband deposited a sum of Rs.5,00,000 (five lakhs) as Fixed deposit and interest from the deposit had been realized by the mother solely for the purpose of betterment and welfare of minor. **6.** The family of the wife has decided to relocate to Malaysia and on that aspect, called the first husband on 2.10.2019 for submission of evidence for the purpose of VISA but this was flatly refused. 7. Husband/father had never taken any interest in the education of the minor as the minor was admitted to Ottappalam school. 8. The part of the order do not consider the welfare of the minor granting visitation rights to father on all second and fourth Saturdays to the Court. **9.** Wife is in a position to obtain a good job in Malaysia being an Engineer graduate and by the time the ward attains majority ie., on 7.11.2030, the wife will be aged 40 and second husband would be aged 60 and there would be disruption in the family **MAT.APPEAL NO. 815 OF 2022 and conctd. case** **8** life. 10. The mother does not have objection qua physical interaction with the ward during the vacation as she is ready to bring the minor to India as per the order of this Court. 7. It was further argued that as per the additional documents placed on record mother had produced the child for interaction on 11.8.2023, 8.4.2023 and 25.3.2023 but the father did not come as evident from the Distribution Register. 8. Learned counsel appearing on behalf of the father and mother submitted that the court below has not given any convincing reasons by noticing the welfare of the child as the order is totally contradictory in as much as that on the one hand, court did not permit the mother to take the child to Malaysia but permitted the mother to take the minor child to abroad during Onam and X-mas holidays and for 30 days period during summer vacations. Permanent custody ought not to have been granted to the mother as the bondage between the father and the minor child who is the son would require the company of the father when the ward would reach the stage of puberty. Ward is at the time pursuing studies and an attempt has been made to change the religion of the child from Hindu to Christian, which is not permissible. The provisions of Hindu Minority and Guardianship Act are applicable to the Hindus. **MAT.APPEAL NO. 815 OF 2022 and conctd. case** **9** Respondent cannot thus unilaterally change the religion of the child as Christian. This aspect was specifically urged but not pondered while passing the impugned order. The primary and paramount duty of the court to take into consideration welfare and interest of the minor and said expression requires a wider meaning which should not be measured in terms of money or physical comfort alone. Mother would not be able to give extra love and affection to a minor son owing to the fact that she has already given birth to a toddler out of the second marriage. Her second husband has already two other children but both are major. No doubt, the custody of the child as per the mutual divorce remain with the mother but father had been meeting the child. The additional documents relied cannot be read against the father for the reason that the father is working in Thiruvananthapuram whereas the child was brought up at Ottappalam which is quite far away. Limited access of the child to the father, particularly, when the child is in full custody of the mother would not be in interest or welfare of the child as the father is also lawful and natural guardian during the stage of minority. There is no such disqualification disentitling to enjoy the company and custody of minor, therefore, the impugned order be set aside in toto and permanent custody of the child be given to the father with certain terms and conditions, which this Hon'ble court deem it **MAT.APPEAL NO. 815 OF 2022 and conctd. case** ## **10** appropriate. 9. We have heard the learned counsel for the parties and appraised the paperbook. It is most unfortunate that in a feud between a husband and wife either a child or children are unnecessarily dragged in and are made to suffer for no rhyme and reason. The said discord has an oscillating effect. No doubt, the decree of divorce did not contain any terms and conditions, with regard to the custody of the child but the agreement entered into between the parties dated 13.9.2014, granted permanent custody of the minor to the mother with a permission to the father to meet and interact with the minor for a span of 8 hours on any of the two Saturdays of every month till he attains majority. The change of circumstances only arose when the mother performed a remarriage on 17.08.2016 and had also given birth to another child out of the wedlock. The 2[nd] husband of the wife is located at Malaysia and aged 52. Wife being an Engineer graduate intends to shift and join the company of the second husband. The question which arises here is "whether relocation of the minor child from India to Malaysia would be for the welfare and betterment of the child or not." It is a matter of record that the child is already studying in India. The father had been, on occasions, meeting the child and both have developed some bond over time. In cases of boys, the company of the father is **MAT.APPEAL NO. 815 OF 2022 and conctd. case** **11** essential for them, particularly at the stage when he attains the age of puberty. Relocation of the child to Malaysia in company of another child, in our considered view, would not be in the interest of the parties as well as welfare of the child. Order of the trial court, particularly, the operative part of the order though refused to grant permission to wife /mother to take the child to Malaysia, but also granted the permanent custody to the mother without knowing the fact that the mother had to join the company of her second husband as there is a child born out of the second wedlock. In otherwords, it tantamounts to indirectly permitting the mother to take the child to Malaysia. Though there is a rider that she would be entitled to take the child to Malaysia during Onam and X-mas holidays and for a period of 30 days during summer vacation. She has been further directed to produce the minor child before the Chief Ministerial Officer of the court on all 2[nd] and 4[th] Saturdays at 2 p.m. The said arrangement would not be possible in case she leaves for Malaysia. The child is required to have a company of both mother and father which had been, till the mother performed the second marriage. While performing a second marriage, parents should be more wary qua interest and welfare of the minor child born out of the first wedlock. Precarious conditions as noticed above in our view can be simplified by ordering the permanent custody of the child with the ## **MAT.APPEAL NO. 815 OF 2022 and conctd. case** **12** father with a further direction that the father will allow the mother to have interaction with the minor through video call every alternative day and whenever there are holidays in the school and the mother intents to visit India, she will be entitled to enjoy the company of the minor till the attainment of majority by splitting the holidays into halves. 10. We cannot be oblivious of the fact that even an injuction order dated 14.10.2019 had also been obtained by the wife from the court of Thiruvananthapuram against the husband. Later on the minor child was admitted in a school in Ottappalam, place where relatives/parents of the wife are residing. We do not appreciate the conduct of the wife in shifting the child from Thiruvananthapuram school to Ottappalam. It is a matter of record that the child was admitted in Thiruvananthapuram school on 23.10.2019. We cannot ignore that the husband had filed an I.A No.3200/2019 for injunction restraining the mother from shifting the child from her residence at 'TC 11/552, Museum Bain Compound, Kawdiar Village, Thiruvananthapuram' and the Family Court at Thiruvananthapuram passed an interim order of injunction dated 14.10.2019 restraining the mother from shifting the then residence of the minor child from her residence till 11.11.2019. But thereafter, the mother shifted the child from the jurisdiction of Family Court, Thiruvananthapuram to **MAT.APPEAL NO. 815 OF 2022 and conctd. case** ## **13** her maternal home at Pattambi, Palakkad and admitted the child to a school and thereafter submitted an application for transfer of OP(G&W) 2353/2019 from Family Court, Thiruvananthapuram to Family Court, Ottappalam, which was allowed and renumbered as OP No.129/2020. The conduct of the wife in putting the child on a roller coaster would seriously affect the mental and physical growth and sometimes such things are deeply ingraved in the mind of the child that he/she may not be able to overcome despite attaining majority and/or even after marriage and/or sometimes become incurable. Even an attempt to change the religion of the child by the mother to Christianity is also not appreciated as the second marriage of the wife is with a Christian. All these factors have not been taken into consideration while passing the order. Accordingly, the impugned order is set aside and both Appeals stands disposed of with the aforementioned observations. Sd/- AMIT RAWAL JUDGE Sd/- C.S. SUDHA JUDGE sab ## **MAT.APPEAL NO. 815 OF 2022 and conctd. case** ## **14** ## **APPENDIX OF MAT.APPEAL 252/2023** PETITIONER ANNEXURES Annexure A 1 A TRUE COPY OF THE DISCHARGE SUMMARY ISSUED FROM THE ANANTHAPURI HOSPITAL & RESEARCH INSTITUTE THIRUVANANTHAPURAM Annexure A 2 A TRUE COPY OF THE DISCHARGE SUMMARY ISSUED FROM THE SREE GOKULAM MEDICAL CENTRE, ATTINGAL THIRUVANANTHAPURAM **15** ## **MAT.APPEAL NO. 815 OF 2022 and conctd. case** ## **APPENDIX OF MAT.APPEAL 815/2022** PETITIONER ANNEXURES Annexure 1 THE CERTIFIED COPY OF DISTRIBUTION REGISTER FROM 12/11/2022 TO 25/2/2023 IN O.P NO 129/2020 ON THE FILE OF THE FAMILY COURT, OTTAPALAM Annexure 2 THE CERTIFIED COPY OF RELEVANT PORTION OF DISTRIBUTION REGISTER IN O.P. NO. 129/2020 OF FAMILY COURT OTTAPALAM