O.P.(FC) No.114 of 2023

## **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 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 OP (FC) NO. 114 OF 2023** **AGAINST THE ORDER DATED 07.02.2023 IN I.A.NO.13 OF 2022 IN I.A.NO.2 OF 2022 IN O.P.NO.976 OF 2022 ON THE FILE OF THE FAMILY COURT, PALAKKAD** ## **PETITIONER/PETITIONER/PETITIONER:** **XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX** **BY ADVS. SABU GEORGE P.B.KRISHNAN P.B.SUBRAMANYAN** ## **RESPONDENT/RESPONDENT/RESPONDENT:** **XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX** **BY ADV.** **R.HARISHANKAR** ## **SRI.N.N. SUGUNAPALAN (SR) FOR RESPONDENT** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.114 of 2023 ## **J U D G M E N T** ## P.G.Ajithkumar, J. The petitioner in O.P.No.976 of 2022 on the file of the Family Court, Palakkad has filed this original petition under Article 227 of the Constitution of India. She filed I.A.No.13 of 2022 in O.P.No.976 of 2022 seeking a modification to the order regarding interim custody of her elder daughter aged 5 years. The Family Court, dismissed that application as per Ext.P6. The petitioner seeks to set aside that order. 2. On 08.03.2023, notice on admission was directed to be served on the respondents. An interim order permitting the petitioner to retain the custody of the child without allowing any visitation right to the respondent was passed for a period of two weeks. Interim order was extended for a further period of two months. 3. Heard the learned counsel appearing for the petitioner and the learned Senior Counsel appeared for the respondent. 4. O.P No.976 of 2022 was filed by the petitioner 3 O.P.(FC) No.114 of 2023 before the Family Court, Palakkad. She filed I.A. No.2 of 2022 in that original petition. The Family Court as per order dated dated 01.11.2022 issued the following directions regarding interim custody of the child. “1. The respondent/father is directed to hand over the custody of the minor female child named Ivana Jithu to the petitioner/mother till the disposal of the main petition; 2. The respondent shall produce the minor female child named Ivana Jithu before the C.M.O/in-charge of this court at 10.30 a.m on 05.11.2022 and hand over the child to the C.M.O/in-charge; 3. The C.M.O/in-charge shall take custody of the said minor child and hand over custody to the petitioner/mother forthwith; 4. The petitioner is allowed to have the interaction with the minor children (both) on all 1[st] and 4[th] Saturdays from 2.30 am to 4.30 p.m till the disposal of the main petition; 5. The petitioner/mother is hereby directed to produce the children before the C.M.O of this court on all 1[st] and 4[th] Saturdays at 2.30 p.m and shall hand over the custody of the children to the respondent/ father upto 4.30 p.m; 6. The respondent shall handover the custody of the minor children at 4.30 p.m to the petitioner in the 4 O.P.(FC) No.114 of 2023 presence of the C.M.O/in-charge; 7. The respondent/father shall not cause any annoyance or inconvenience to the children remaining in his custody; 8. The respondent/father shall pay Rs.750/- to the petitioner/mother towards the travelling expense on all the interaction days; 9. The respondent/father is also permitted to interact with the minor children through video call on all Mondays, Thursdays and Sundays from 7 p.m to 7.30 make necessary arrangements for the same in time; 10. It is made clear that the 2[nd] child was born only on 05.07.2022. That means, 2[nd] child is now aged only 04 months old. So, the respondent/father shall take utmost care and give such a consideration to the said child during the course of his interaction.” 5. Respondent filed O.P.(FC)No.630 of 2022 challenging the said order. This court disposed of O.P.No.630 of 2022 on 16.11.2022. Order of the Family Court dated 01.11.2022 was modified as follows: “i) The petitioner shall handover custody of the child to the respondent at 10.30 a.m. on 18.11.2022 in the presence of the Chief Ministerial Officer of the Family Court, Palakkad; 5 O.P.(FC) No.114 of 2023 ii) The petitioner-father will be given interim custody of the child from 11.00 a.m. on the first and fourth Saturdays till 4.00 p.m. on the following Sunday every month; iii) The petitioner will get and give back the child for the weekend custody as aforesaid from the house of the respondent; iv) The petitioner and the respondent are prohibited from taking the child outside Kerala without permission of the Family Court, Palakkad; v) The respondent shall admit the child in a standard educational institution near her present residence at Palakkad; and vi) The parties may approach the Family Court, Palakkad, if any further modification in the matter of interim custody is required, after two months. 6. In terms of the said direction, custody of the child was given to the respondent on 26.11.2022 and again on 03.12.2022. The petitioner filed I.A.No.13 of 2022 before the Family Court, Palakkad for cancelling the right of visitation of the respondent. The allegation is that the respondent sexually abused the child when he was in custody of the child. A crime was seen registered with regard to the said allegation. The 6 O.P.(FC) No.114 of 2023 petitioner would contend that the child had to undergo treatment in connection with the ill treatment and sexual abusement by the respondent. In the wake of those developments, the petitioner filed I.A.No.13 of 2022. 7. The Family Court took the view that clause no.(vi) in the operative part of Ext.P1 judgment enables only modifications and no deletion, removal or cancellation of any stipulation in Ext.P1 judgment regarding custody of the child. Resultantly the Family Court dismissed I.A.No.13 of 2022. 8. The learned Senior Counsel appeared for the respondent would submit that a scrutiny of the materials on record reveals falsity of the allegations levelled against the respondents. The learned Senior Counsel further would submit that mere registration of a crime under the provisions of the POCSO Act against the father is not a sufficient reason to deny him custody of the child. Our attention is invited to the decision of this court in **Suhara and others v. Muhammed Jaleel [2019 (2) KHC 596].** 9. In **Rosy Jacob v. Jacob A. Chakramakkal** 7 O.P.(FC) No.114 of 2023 **[(1973) 1 SCC 840]** the Apex Court held that all orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. Orders relating to custody of wards even when based on consent are liable to be varied by the Court if the welfare of the wards demands variation. 10. In the light of the said proposition of law, a custody order is liable to be modified if there is change in the circumstances necessitating modification or alteration in the order regarding custody. In this case, the allegations are such that, in order to take a decision on the request for change in the custody order, fresh materials are required to be considered. It is for the Family Court to consider those matters and take an appropriate decision. We do not therefore venture to consider the veracity of the allegations levelled 8 O.P.(FC) No.114 of 2023 against the respondent. We clarify that the Family Court, Palakkad is free to consider the materials placed on record and can delete, remove or cancel any of the clauses governing the custody of the child in Ext.P1 judgment, if required to ensure welfare of the child. Therefore we allow this original petition and set aside Ext.P6. Family Court, Palakkad is directed to consider afresh I.A.No.13 of 2022 in O.P.No.976 of 2022 and decide it accordance with law. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** PV 9 O.P.(FC) No.114 of 2023 ## **APPENDIX** ## **PETITIONER'S EXIBITS** **EXIBIT - P1** **A true copy of the judgment dated 16.11.2022 in O.P.(FC) No.630 of 2022 before this Hon'ble Court** **EXIBIT - P2** **A true copy of the Discharge Card issued from the Department of Pediatrics, New Medical College Hospital, Mulamkunnatukavu, Thrissur** **EXIBIT - P3 A true copy of I.A.No.13 of 2022 in I.A.No.2 of 2022 in O.P.No.976 of 2022 on the file of the Family Court, Palakkad, dated 17.12.2022** **EXIBIT - P4** **A true copy of the prescription from the Department of Pediatrics and the report by the Clinical Psychiatrist in New Medical College Hospital, Mulamkunnathukavu, Thrissur, dated 06.01.2023** **EXIBIT - P5** **A true copy of the objection filed by the respondent in I.A.No.13 of 2022 in I.A.No.2 of 2022 in O.P.No.976 of 2022 on the file of the Family Court, Palakkad, dated 11.01.2023** **EXIBIT - P6** **A true copy of the order dated 07.02.2023 in I.A.NO.13 OF 2022 in I.A.No.2 of 2022 in O.P.No.976 of 2022 on the file of the Family Court, Palakkad**