## **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 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 R.P.NO. 1017 OF 2023 AGAINST THE JUDGMENT DATED 13.04.2023 IN OP (FC) NO.175 OF 2023 OF THE HIGH COURT OF KERALA**
## **REVIEW PETITIONER/RESPOINDENT:**
**PRINCE V. ELIAS, AGED 43 YEARS, S/O LATE REV:V.O.ELIAS, VALIYAPARAMBIL HOUSE, KUTTANADUTALUK, ALAPPUZHA DISTRICT, NOW RESIDING AT FLAT NO.2905, 29TH FLOOR, ZODIAC CHS, MARATHON NEXZONE, JNPT HIGHWAY,NEAR PALASPHEPHATA, KOLKHE, PANVEL, NAVI MUMBAI, RAIGAD DISTRICT, MAHARASHTRA, PIN – 410221.**
**BY ADVS. C.S.MANILAL S.NIDHEESH**
## **RESPONDENT/PETITIONER:**
**BIBIN MARY ABRAHAM AGED 36 YEARS, D/O.ABRAHAM JOSEPH, KANNAMKERIL HOUSE, THENGALIMURI, KUTTOOR VILLAGE, THIRUVALLATALUK, PATHANAMTHITTA DISTRICT, PIN – 689106.**
**BY ADV BHANU THILAK**
**THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 25.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **O R D E R**
## P.G.Ajithkumar, J.
This Review Petition under Section 114, read with Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 was filed by the respondent in O.P.(FC) No.175 of 2023. He seeks to review the said judgment essentially on account of a few subsequent events.
2. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
3. The petitioner is the father and the respondent is the mother of three children, William Price, Winston Price and Wilfred Price. The respondent filed O.P.(G&W) No.320 of 2021 before the Family Court, Thiruvalla. The petitioner filed a counter claim. The elder son was then with the petitioner and the other two children were with the respondent. I.A.No.4 of 2023 was filed by the petitioner claiming interim custody of the two younger children. That application was allowed by the Family Court as per the order dated 31.03.2023. The
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respondent filed O.P.(FC) No.175 of 2023 before this Court challenging the said order. This Court, after hearing both sides, disposed of the original petition confirming the order of the Family Court, subject to a modification that if the respondent mother is available at her native place, custody of the children shall be entrusted with her for a period of ten days, without affecting the studies of the children. Such a condition for the mother's custody was insisted since she has been working in the United Kingdom. As per the arrangement for interim custody of the children, the petitioner is obliged to produce the children at the house of the respondent once in three months in order to enable the maternal grandparents to have interaction with the children for two days.
4. The petitioner would contend that he could not produce the children in July, 2023 in terms of the aforesaid order for the reason that his father expired on 02.07.2023 and the funeral could be had only on 07.07.2023 owing to the climatic conditions and flood situation. In August, 2023, however, the petitioner brought the children on 10.08.2023
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from Mumbai where they are presently residing and entrusted with the grandparents. The petitioner proposed to return on 13.08.2023. In the meanwhile, the respondent filed I.A.No.15 of 2023 on 13.08.2023 seeking to cancel/modify the order in I.A.No.4 of 2023, which stood confirmed by the judgment of this Court in O.P.(FC) No.175 of 2023. The petitioner filed an objection to the said interlocutory application. Thereafter, the respondent filed a review petition before the Family Court.
5. On 14.08.2023, the children were produced before the Family Court. But there occurred certain unusual and unwholesome developments, including a complaint that the second child was sexually harassed by the brother of the petitioner. That matter was investigated into by the police. A statement of the child under Section 164 of the Code of Criminal Procedure, 1973 was also recorded. The allegation that the brother of the petitioner sexually harassed the child was turned out to be a false story cooked up at the instance of the grandparents with the aid of their lawyers. Again complaint was filed in the Ramankary Police Station that the
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petitioner took away the children. Since the allegation was that the children were missing an investigation into the same was conducted by the Circle Inspector of Police and on realising the real fact that the children were with the petitioner and their welfare was being taken care of properly, no further action was taken by the police. In the light of the said developments and also in view of the fact that the respondent is still abroad, the petitioner seeks to review the judgment dated 13.04.2023. The order which is sought by the petitioner on the review of the judgment is to delete the provision for handing over interim custody of the children to the respondent and grandparents.
6. The learned counsel for the petitioner would submit that in the light of the false complaints initiated at the instance of the grandparents, the children, particularly, the second son was put to much psychological and emotional trauma and giving custody any further to the grandparents will adversely affect the very psychological balance of the said child. It is urged to deny custody to the respondent contended
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by placing reliance of the decision of the Apex Court in **Rohith Thammana Gowda v. State of Karnataka [AIR 1022 SC**
**3511]** , wherein it was held that claim for custody and right of the parents will be forfeited if there is very serious proven misconduct which would make one of them unworthy to claim for custody.
7. _Per contra_ the learned counsel appearing for the respondent would submit that the attempt of the petitioner is to avoid handing over custody of the children to the respondent-mother by hook or crooks. It is submitted that the Family Court, Thiruvalla did not accept the contentions of the petitioner and only for that reason, he came up with the present review petition.
8. The order of the Family Court in I.A.No.4 of 2023 was modified by this Court as per the judgment in O.P.(FC) No.175 of 2023. Therefore the custody of the children has to be governed by the order in I.A.No.4 of 2023 as modified by the judgment of this Court. The request of the petitioner is based on a few subsequent events. Whether such subsequent
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events have an impact on the arrangement made in regard to the custody of the children and the order requires modification, are matters to be decided after considering the correctness or not of the subsequent events. There are allegations and counter-allegations. Unless such factual aspects are considered with reference to the rival contentions and the materials on record, there cannot be a decision on the plea for modifying the order regarding custody.
9. O.P.(G&W) No.320 of 2021 is pending consideration of the Family Court. In such circumstances, it is for the Family Court to consider the plea of the petitioner for modification of the order regarding custody of the children. This Court cannot consider such subsequent events on the plea of a review. We are therefore of the view that the petitioner has to approach the Family Court for modification of the order regarding interim custody of the children.
10. This Review Petition is disposed of accordingly. We make it clear that the observations in the judgment in O.P. (FC) No.175 of 2023 or the observations herein shall not
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trammel the decision of the Family Court on the plea of the petitioner to modify the custody order.
**Sd/-**
**ANIL K. NARENDRAN, JUDGE**
**Sd/-**
**P.G. AJITHKUMAR, JUDGE**
dkr
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## **APPENDIX OF RP 1017/2023**
## **PETITIONER ANNEXURES**
## **Annexure-I**
**TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.15/2023 O.P. (GW)320/2021, DTD. 2/8/2023, FILED BEFORE THE FAMILY COURT, THIRUVALLA**
## **Annexure-II**
**TRUE COPY OF THE OBJECTION FILED BY THE REVIEW PETITIONER, IN O.P. (GW)320/2021, DTD. 13/8/2023, FILED BEFORE THE FAMILY COURT, THIRUVALLA**
## **Annexure-III**
**TRUE COPY OF THE REVIEW PETITION FILED BY THE REVIEW PETITIONER, IN O.P. (GW)320/2021, FILED BEFORE THE FAMILY COURT, THIRUVALLA**
## **Annexure-IV**
**TRUE COPY OF THE REPORT DTD. 25/8/2023 BY THE COUNSELOR/PSYCHOLOGIST, CENTRE FOR ASSESSMENT AND REMEDIAL TRAINING**
