Peter John.V.S v. Sreeja.S.Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 Mat.Appeal.No. 26 of 2010() --------------------------(ORDER IN I.A.3173/08 IN O.P.(G&W) NO. 558/08 OF THE FAMILY COURT, NEDUMANGAD APPELLANT/PETITIONER/RESPONDENT IN OP ------------------------------------------ PETER JOHN.V.S, S/O.V.V.JOHN, AGED 36 YEARS, RESIDING AT NO.006, GOLD STRIKE, SUNCITY, SARJAPURA RING ROAD, IBBLUR, BANGALORE-34. BY ADV. SRI.K.T.SHYAMKUMAR RESPONDENT: PETITIONER IN OP ------------------------------- SREEJA.S.NAIR, D/O.AJITHAKUMARI, AGED 34 YEARS, RESIDING AT SREE SAILAM, TC 6/248, NETHAJI ROAD, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.A.J. JOSE FOR MEMEDIATOR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON 16/02/2010 DELIVERED THE FOLLOWING: ORDERS ON I.A. NO. 67/2010 AND I.A. NO. 269/2010 ON MAT. APPEAL NO. 26 OF 2010 DISMISSED. SD/- K.M.JOSEPH (JUDGE) SD/- M.L.JOSEPH FRANCIS (JUDGE) 16.02.2010 ## **K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.A.No. 26 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ... day of February, 2010 ## **JUDGMENT** ## **Joseph Francis, J.** The respondent/husband in O.P. (G & W) No.558 of 2008 on the file of the Family Court, Nedumangad is the appellant herein. The respondent is the petitioner/wife in that petition, which was filed praying for permanent custody of Master Athul, son of the petitioner and the respondent. 2. The case of the appellant in brief is as follows. The appellant and the respondent are husband and wife. The appellant is a Christian by religion and the respondent was a Hindu. While working together in a Company at Bangalore, they fell in love with each other. The respondent converted to Christianity before marriage accepting the Christian faith by oath Mat.A.No. 26 of 2010 2 and got baptised at the Holy Ghost Church, Bangalore on 4.8.2000. The marriage was thereafter solemnised on 20.8.2000 at St. George Church, Perumanoor, Ernakulam. Later the respondent and appellant registered the marriage under the provisions of the Special Marriage Act. After the marriage, a son was born in the wedlock who is now aged 5 years. The son was baptised and named as 'Attul V. Peter'. 3. Later the respondent walked out of the house with the son owing to difference of opinion with the appellant and on the instigation of her parents. The appellant filed application under the Guardian and Wards Act for custody of the child before the Family Court, Bangalore. A compromise was entered into at the instance of mediators, whereby it was agreed to handover the child to the appellant on all Sundays. Recording the compromise, the petition was decreed. 4. However, the respondent flouted the order. Hence the appellant filed execution petition before the Family court, in which police assistance was ordered to enforce the order. The respondent Mat.A.No. 26 of 2010 3 approached the High Court of Karnataka against the said order. The High Court ordered the respondent to handover the child on all Saturdays, except second Saturdays, in the premises of the Family Court, Bangalore. While the said order was in existence, the respondent moved to Thiruvananthapuram and filed O.P. No. (G & W) No. 558 of 2008 before the Family Court, Nedumangad for custody of the child. After filing the petition, the respondent withdrew the M.F.A., filed before the Bangalore High Court by filing a memo. The order of the Family Court, Bangalore therefore has remained final. 5. The appellant filed I.A. No. 3173 of 2008 in O.P. (G&W) No. 558 of 2008 praying to consider the question of maintainability of the original petition, as a preliminary issue. The Family Court has now dismissed the said petition stating the reason that it is permissible to present a new case before the court if there is substantial change in the circumstances. Against that order, the petitioner/husband in that I.A. filed this appeal. Mat.A.No. 26 of 2010 4 6. Heard the learned counsel for the appellant and the learned counsel for the respondent. 7. The petitioner/wife filed O.P.No. 558 of 2008 before the Family Court, Nedumangad under Section 38 of the Special Marriage Act r/w. Section 7 of the Family Court Act for a decree declaring that the petitioner/wife is entitled to have the custody of the minor child Athul and for an injunction restraining the respondent/husband from removing the child from the custody of the petitioner/wife. There is no dispute that the respondent/husband had filed a petition before the Family Court, Bangalore as GWC 47 of 2006 for the custody of the child and that petition was allowed as per the settlement arrived at between the parties through Mediation Centre and as per that settlement, the petitioner/wife was allowed to have the custody of the child and the respondent/husband was allowed to have visitation right on every Sunday from 9 a.m. to 6 p.m. Admittedly that order was passed when both the parties were residing in Bangalore. After that Mat.A.No. 26 of 2010 5 order, the petitioner/wife returned from Bangalore to Kerala in April, 2008. 8. The learned counsel for the appellant/husband argued that Section 38 of the Special Marriage Act provides for granting of interim orders with respect to custody of child and that the order of the Family Court, Bangalore is still in force and therefore O.P.No. 558 of 2008 on the file of the Family Court, Nedumangad is not maintainable. He would submit that no change in circumstance is pleaded. The learned counsel for the respondent pointed out that the respondent had to move to Bangalore. The learned counsel for the appellant invited our attention to paragraph 41 of the decision of the Apex Court reported in **Byram Pestonji Gariwala v. Union Bank of India** (AIR 1991 SC 2234), in which it was held: “In the present case, the notice issued under O.XXI, R.22 was personally served on the defendant, but he did not appear or show cause why the decree should not be executed. The notice was accordingly made absolute by Mat.A.No. 26 of 2010 6 Order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree. The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata. As stated by this Court in Shankar Sitaram Sontakke v Balkrishna Sitaram Sontakke, AIR 1954 SC 352:- “.........It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of 'res judicata'. The same view was taken in the decision reported in **Shankar Sitaram Sontakke v. Balkrishna Sitaram Sontakke** (AIR 1954 SC 352). 9. In the decision reported in **Sailendra Narayan Bhanja Deo v. The State of Orissa** (1956 SC 346) it was held: “A judgment by consent or default is as effective an estoppel between the parties as a 7 Mat.A.No. 26 of 2010 judgment whereby the court exercises its mind on a contested case. 10. The above cited decisions are rendered not in proceedings for custody of child, but relates to cases of purely civil nature and property rights of parties. In the decision reported in **Joshi v. Madhav Unde** (1998) 1 SCC 112 it was held: “Orders relating to custody of children are not final, but are interlocutory in nature subject to modification upon change of proof of circumstance. But doctrine of resjudicata applies to such orders of custody and in a subsequent proceeding the Family Court cannot re-examine the facts which are formerly adjudicated between the parties on the issue of custody - or are deemed to have been adjudicated. There must be proof of substantial change in the circumstances presenting a new case before the court. It must be established that the previous arrangement was not conductive to the child's welfare or that it has produced unsatisfactory results”. Mat.A.No. 26 of 2010 8 11. The question whether there is a substantial change in the circumstances for presenting a new case before the Family Court, Nedumangad is a matter to be decided on proof. For that purpose evidence has to be adduced in the O.P. at the time of taking evidence. Therefore at the present stage the learned Family Court, Nedumangad is fully justified in dismissing I.A. 3173 of 2008 in O.P.No. 558 of 2008. 12. Accordingly this appeal is dismissed as it is without any merits. The parties are directed to suffer their respective cost in this appeal. **(K. M. JOSEPH)** Judge **(M.L. JOSEPH FRANCIS)** Judge tm