PRIYA ABRAHAM v. NAVIN SCARIA

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV & THEHONOURABLEMR.JUSTICEP.M.MANOJ MONDAY,THE8[TH]DAYOFAPRIL2024/19THCHAITHRA,1946 OP(FC)NO.202OF2024 ``` ``` AGAINSTTHEORDERDATEDINIANO.7OF2024IN O.P.No.496/2022FAMILYCOURT,THIRUVANANTHAPURAM, ORDERINI.A.No.2OF2022INI.A.No.6/2023,FAMILYCOURT, THIRUVANANTHAPURAM ``` ``` PETITIONER/RESPONDENTINI.A.No.2/2022&I.A.No.6/2023IN O.P.NO.496/2022&PETITIONERINI.A.No.7/2024IN O.P.No.496/2022: ``` ``` PRIYAABRAHAM,AGED41YEARS D/O.ANNIETHOMAS,KONNACKALHOUSE,TC4/2239-29, B-7,KRISHNANAGAR,PATTOMP.O,THIRUVANANTHAPURAM DISTRICT-695004REPRESENTEDBYABRAHAMJACOB,FATHER ANDPOWEROFATTORNEYHOLDERAGED70S/OK.C.JACOB KONNACKALHOUSE,B-7,KRISHNANAGAR,PATTOMP.O, THIRUVANANTHAPURAMDISTRICT,PIN-695004 ``` ``` BYADVS. V.PHILIPMATHEWS ABYSKARIA SEBAANNASIMON ``` ``` RESPONDENT/PETITIONERINI.A.No.2/2022&I.A.No.6/2023IN O.P.NO.496/2022&RESPONDENTINI.A.No.7/2024IN O.P.No.496/2022: ``` ``` NAVINSCARIA,AGED44YEARS S/O.SKARIAMARANGATTUHOUSEVAKATHANAMP.O, KOTTAYAMDISTRICT,PIN-686538 ``` ``` BYADVS. BIJUCABRAHAM MATHEWSK.UTHUPPACHAN(K168/1993) THOMASC.ABRAHAM(K/517/2022) BASILMATHEW(K/000588/2020) ``` ``` THISOP(FAMILYCOURT)HAVINGCOMEUPFORFINALHEARINGON 08.04.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` OP (FC) No.202 of 2024 2 ## **“CR”** ## **JUDGMENT** ## **Raja Vijayaraghavan, J.** The petitioner herein is the respondent in O.P.(G&W) No. 496/2022 on the file of the Family Court, Thiruvananthapuram. The said petition was filed by the former husband of the petitioner for declaring himself as the guardian and for permanent custody of the child. The challenge raised by the petitioner as regards the maintainability of the petition was rejected against which a review petition was filed. The same was rejected by Ext.P10 order. The interim custody of the child was granted to the petitioner which was later modified by Exhibit P13 order. Being aggrieved by the above orders, the petitioner has filed the Original Petition before this Court seeking the following reliefs: i) Pass appropriate order setting aside Ext.P10. ii) Pass appropriate order setting aside Ext.P13. iii) Pass appropriate orders directing the Family Court, Thiruvananthapuram to reconsider Exts.P8 and P11. 2. To appreciate the contentions, brief facts leading to the passing of the orders impugned are required to be stated. For ease and clarity, the parties shall be described as per their status before this Court. OP (FC) No.202 of 2024 3 a) The marriage of the petitioner and the respondent was solemnized on 14.5.2007 and a girl child was born on 1.5.2010. The child has been diagnosed with Attention Deficit Hyperactivity Disorder and Speech and Language Disorder. Within a short period, the relationship between the parties became strained. O.P.No.142/2016 was filed by the petitioner seeking dissolution of marriage and O.P.(G & W) No.136/2016 was filed seeking permanent custody and guardianship of the child. Both these petitioners were sent for mediation and subsequently, both parties entered into a Memorandum of Agreement executed under Section 89 of the Code of Civil Procedure r/w Rule 24 and 25 of the Civil Procedure (Alternate Dispute Resolution) Rules, 2008 (“Rules, 2008” for the sake of brevity). b) As per the terms of the agreement, while settling the entire dispute, the permanent custody of the minor child was agreed to be with the petitioner-mother, and the respondent-father was granted the visitation rights to see the minor child in the premises of the Family Court, Thiruvananthapuram once in three months. It is also stated in the agreement that all the pending matters can be disposed of in terms of the agreement. The parties have acted in terms of the agreement. c) While so, after about 4 years, the respondent approached OP (FC) No.202 of 2024 4 the Family Court and instituted O.P.(G&W)No. 496/2022 seeking permanent custody and for a declaration that he is the legal guardian. d) The petitioner entered appearance and filed an objection as to the maintainability. The Family Court was of the view that though the parties had entered into an agreement, the cases were not disposed of in terms of the compromise agreement. It was also noted that the agreement was not made a part of the order in those cases. The cases were dismissed as not pressed. It was held that the bar would be applicable only if the earlier petition was allowed or disposed of on merits. 3. Being aggrieved, a review petition was filed which was also dismissed by Ext.P10 order holding that the question of guardianship of the child was not decided in the earlier petition. 4. Later, the application for modification of interim custody was partly allowed and the interim custody of the child was ordered to be handed over to the respondent from 10:30 am to 1:30 pm on every fourth Saturday at the premises of the Family Court at Bangalore. 5. Sri. V. Philip Mathews, the learned counsel appearing for the petitioner, would refer to the Rules, 2008, and it is pointed out by the OP (FC) No.202 of 2024 5 learned counsel that as the parties have entered into a settlement agreement, the Family Court was obliged to record the settlement in terms of Section 89 of Code of Civil Procedure and Rules 24 and 25 of the Rules. For reasons unknown, the Family Court proceeded to dismiss the petition as not pressed. The said action is illegal. Reliance is also placed on Order XXIII Rule 3 and 3A of the Code of Civil Procedure and it was urged that when the matter has been adjusted wholly or partly by any lawful agreement or compromise in writing and signed by the parties, the Court was bound to record the agreement and pass a decree in accordance therewith. A fresh petition is barred under Rule 3A, contends the learned counsel. The learned counsel would rely on the Principle of “actus curiae neminem gravabit” and it is urged that the act of the Court shall prejudice no one and in such a factual situation, the Court is under an obligation to undo the wrong done to a party by the act of the Court. The learned counsel would refer to the settlement agreement and highlight that the permanent custody of the minor child was retained with the mother and the respondent was only granted visitation right to see the minor child in the premises of the Family Court. It is pointed out that the Family Court proceeded to dismiss the petition on the sole ground that the petition was dismissed as not pressed. Reliance is also placed on Rule 9 and Form Nos. 15 and 16 of the Rules OP (FC) No.202 of 2024 6 under the Guardian and Wards Act, 1890 framed by the High Court, and it is submitted that subsequent applications can only be interlocutory and no fresh petition can be maintained. Relying on the law laid down in **Sindhu P. K.[1]** and **Thriloki Nath Singh[2]** , it is submitted that once the compromise was found to be lawful, the Court was obliged to record the same, and no challenge to the same by way of appeal or review can be entertained. 6. Sri.Biju.C. Abraham, the learned counsel appearing for the petitioner, has countered the submissions. The learned counsel would point out that it is based on the submission made by both sides that Ext.P2 judgment was rendered by the Family Court and the case was dismissed as not pressed. The settlement agreement entered into between the parties was not made part of the judgment. He urged in that view of the matter, the finding of the Family Court in Ext.P7 order that the cases were not disposed of in terms of the compromise agreement cannot be said to be erroneous. It is submitted that the orders passed by the Family Court are hence unassailable. The learned counsel would then refer to the law laid down in **Dr. Ashish Ranjan[3]** and it was argued that the settlement mutually reached between the > 1 Sindhu P. K. v. Sreekumar P. A. and Another, 2015 (3) KLT 869 2 Thriloki Nath Singh v. Anirudh Singh (D) through LRs. and Others, 2020 (6) SCC 629 > 3 Dr. Ashish Ranjan v. Anupama Tandon and Another [(2010) 14 SCC 274] OP (FC) No.202 of 2024 7 parties cannot come in the way of the well-established principles in respect of the custody of the child and therefore, a subsequent application for custody of a minor cannot be thrown out at the threshold as being not maintainable. It was also held that the doctrine of res judicata is not applicable in matters of child custody. 7. We have carefully considered the submissions and have gone through the records. 8. There is no dispute with the fact that the petitioner herein - had filed two petitions before the Family Court O.P.No.142/2016 was filed by the petitioner seeking dissolution of marriage and O.P.(G&W) No. 136/2016 was filed seeking permanent custody and guardianship of the child. The parties being Christians, the dissolution of their marriage would be governed by the Divorce Act, 1869. Both the petitions were disposed of in terms of the compromise entered into between the parties. Ext.P1 is the Memorandum of Agreement executed under Section 89 of the Code of Civil Procedure read with Rules 24 and 25 of the Civil Procedure (Alternate Dispute Resolution) Rules, 2008 signed by both parties and their counsels. The settlement agreement entered into between the parties reads as under: “1. The aforesaid Suit/Appeal/Petition/Complaint was referred to OP (FC) No.202 of 2024 8 mediation for solving the dispute between the parties. In the course of mediation they have resolved their disputes and have agreed to the following terms and conditions: I. Parties are agreed to settle their disputes and agreed to file joint petition for divorce. II. The respondent agreed that he is ready and willing to pay the maintenance to the petitioner as per the order to be passed by the Hon'ble Family Court, Thiruvananthapuram in MC 334/2016. III. In all other matters the parties are settled all their financial claims between each other. IV. The permanent custody of the minor child namely Jenisha is with the petitioner mother and the respondent has the visitation right to see the minor child in the premises of Hon’ble Family Court, Thiruvananthapuram once in three months as per the convenience of the parties and which shall be intimated to the petitioner by the respondent through e-mail at least one week prior to his visit without affecting the education of the child. 2. In the view of the aforesaid agreement entered into between parties, the parties pray that the suit/Appeal/Petition/Complaint be disposed of in therms of the aforesaid agreement. 3. In view of the aforesaid agreement, Plaintiff/Appellant/Petitioner pray for refund of full institution fee. 4. Parties will appear on……before the court for passing Orders/Decree in terms of the above agreement.” (emphasis supplied) 9. The parties have complied with the terms of the agreement and they have secured a decree of divorce. They have also agreed that the permanent custody of the Child shall be with the mother. OP (FC) No.202 of 2024 9 10. As held by the Apex Court in **Amit Kumar[4]** , if the decision to give custody of the children, to the petitioner was a conscious decision taken by the parties at the relevant stage and, it can hardly be categorized as a decision under force, pressure, or fraud. The respondent has accepted the compromise and had waited for four years before proceeding to institute the fresh petition. It is also relevant to note that the respondent has admitted in the petition filed by him before the Family Court that he is approaching the Family Court seeking execution of the settlement agreement. 11. In this context, it would be apposite to refer to the relevant provisions. Clearly, the agreement has been executed under Section 89 of the Code and Rules 24 and 25 of the Rules, 2008. The agreement has been verified and signed by the parties and their respective counsels. Section 89 (b) of the CPC states that where it appears to the Court that the dispute between the parties may be settled and there exists elements of settlement which may be acceptable to the parties, the Court may refer the parties to mediation, to the court-annexed mediation center or any other mediation service provider or any mediator, as per the option of the parties, and thereafter the provisions of the Mediation Act, 2023 shall apply as if the proceedings for mediation were referred for settlement under the provisions of that Act to arrive at a compromise between the parties and the Court is bound to follow such procedure as deemed fit for judicial settlement. 4 Amit Kumar v. Sonila [(2019) 12 SCC 711] OP (FC) No.202 of 2024 10 ## 12. Rules 24 and 25 of the Civil Procedure ( ADR) Rules read as under: ## Rule 24. Settlement Agreement (1) Where an agreement is reached between the parties in regard to all the issues in the suit or some of the issues the same shall be reduced to writing, verified and signed by the parties or their power of attorney holder. The signatures of the parties to such an agreement shall be attested by their respective counsel or by any of the authorities mentioned in Rule 27 of the Kerala Civil Rules of Practice. (2) The agreement of the parties so signed and attested shall be submitted to the mediator who shall, with a covering letter signed by him, forward the same to the Court in which to the suit is pending. (3) Where no agreement is arrived at between the parties, before the time limit stated in Rule 19 or where, the mediator is of the view that no settlement is possible, he shall report the same to the said Court in writing. 13. When an agreement has been reached, the same is to be reduced into writing and signed by both parties and the same is required to be forwarded to the Court with the signature of the mediator. The Court is thereafter bound to follow the procedure prescribed under Rule 25. Rule 25 reads as under: Rule 25-Court to fix a date for recording settlement and passing decree OP (FC) No.202 of 2024 11 (a) Within seven days of the receipt of any settlement, the Court shall issue notice to the parties fixing a day for recording the settlement, such date not being beyond a further period of fourteen days from the date of receipt of settlement, and the Court shall record the settlement, if it is lawful. (b) The Court shall then pass a decree in accordance with the settlement so recorded, if the settlement disposes of all the issues in the suit. (c) If the settlement disposes of only certain issues which are severable and if a decree could be passed to the extent of the settlement, the Court after recording the settlement on the date fixed for the same, may pass a decree straight away in accordance with the settlement on those issues which were settled without waiting for a decision of the Court on other issues which are not settled. If the issues settled are not severable the Court shall wait for the decision of the Court on other issues which are not settled. 14. What Rule 25 states is that once a settlement is reached and the court is intimated, the court must notify the parties within seven days and set a date to record the settlement. This date should not exceed fourteen days from the date when the settlement was received. The court will then formally record the settlement if it complies with the law. If the recorded settlement resolves all the issues in the case, the court will issue a decree in accordance with the terms of the settlement. If the settlement only resolves some issues and these issues are separable from others in the case, the court may immediately issue a decree for those resolved issues upon recording the settlement, without waiting for resolution of the unresolved issues. If the resolved issues are not separable, the court must wait until the remaining issues are decided OP (FC) No.202 of 2024 12 before issuing a decree. 15. In the case on hand, the Family Court, for one reason or the other, has not followed the procedure stipulated in Rules 24 and 25 of the Rules, 2008. What has been done is that the petitions were disposed of as not pressed. The question is whether a wrong committed by the Court should prejudice the parties. The incidental question is whether, for the reason that the case was not disposed of in terms of the compromise, a fresh petition for custody and guardianship should be permitted to be filed. 16. It would be apposite at this juncture to refer to the Rules framed by the Kerala High Court in the exercise of the powers conferred by Article 227 of the Constitution of India, Section 50 of the Guardians and Wards Act, 1890 (Central Act 8 of 1890) and of all other powers thereunto enabling and in supersession of the existing rules on the subject with the previous approval of the Government of Kerala. Rule 2 says that an application by any person, other than the Collector or other officer appointed by the Government, for the appointment of a guardian, or for a declaration that a person is the guardian of a minor, shall be by original petition in Form No. 1. An interlocutory order for the protection of the person and /or property of a minor may be as in Form No. 2. Rule OP (FC) No.202 of 2024 13 9 says that every application under the Act subsequent to the determination of the original petition under which a guardian of the minor was appointed or declared by the Court shall be by interlocutory application headed as in Form No. 10. Form No. 15 of the Rules deal with an application for removal or discharge of a guardian and Form No.16 deals with interim order removing or discharging a guardian. 17. What the Rule says is that every application under the Act subsequent to the determination of the Original Petition under which a guardian of the minor was appointed or declared by the Court shall be by interlocutory application. 18. In this context, the parties being christians, it would also be apposite to refer to the relevant provisions of Chapter XI of the Divorce Act, 1869, which deals with the custody of children. ## XI.—CUSTODY OF CHILDREN 41. Power to make orders as to custody of children in suit for separation.— In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the said Court: OP (FC) No.202 of 2024 14 Provided that the application with respect to the maintenance and education of the minor children pending the suit, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent. 42. Power to make such orders after decree.—The court, after a decree of judicial separation may upon application (by petition) for this purpose make, from time to time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending. 43. Power to make orders as to custody of children in suits for dissolution or nullity.— In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may from time to time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the court. 44. Power to make such orders after decree or confirmation.—4 Where a decree of dissolution or nullity of marriage has been passed, the District Court may, upon application by petition for the purpose, make from time to time all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents was the subject of the decree, or for placing such children under the protection of the said court, as might have been made by such decree absolute or decree (as the case may be), or by such interim orders as aforesaid. ## 19. The ‘Act of 1869’ provides that in cases involving judicial separation, dissolution, or nullity of marriage, courts possess the OP (FC) No.202 of 2024 15 authority to make decisions concerning the custody, maintenance, and education of the minor children from the marriage in question. Section 41 elucidates that in any suit for judicial separation, the court may issue interim orders regarding the custody, maintenance, and education of minor children before finalizing its decree. The court can also direct actions to place these children under its protection. Any application concerning children's maintenance and education should ideally be resolved within 60 days from when the respondent is notified. Section 42 says that after issuing a decree of judicial separation, the court may, upon receiving a subsequent petition, issue orders or provisions similar to those it could have issued before the decree, concerning the children’s custody, maintenance, and education. This includes placing the children under the court's protection. Section 43 provides that in suits for the dissolution of marriage or nullity, the court can make interim orders regarding the children's custody, maintenance, and education before issuing its decree. The court may also consider placing the children under its protection. Section 44 provides that following a decree of dissolution or nullity, the District Court can make ongoing orders about the custody, maintenance, and education of the children, or about placing them under the court's protection, as per the conditions that might have been set in the initial or interim orders. These provisions underscore the commitment OP (FC) No.202 of 2024 16 of the Court to the welfare of children involved in marital disputes, ensuring their care and protection throughout and following legal proceedings. 20. Of course in **Dr. Ashish Ranjan[5]** , which is relied on by Sri. Biju Abraham, the Apex Court had occasion to observe that the mutual settlement reached between the parties cannot come in the way of the well-established principles in respect of the custody of the child and therefore, a subsequent application for custody of a minor cannot be thrown out at the threshold as being not maintainable. It was also held that the doctrine of res judicata is not applicable in matters of child custody. The Apex Court went on to hold as follows in paragraphs 15 to 19 of the judgment: “15. In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840], this Court (three-Judge Bench) considered the nature of custody of a minor under the provisions of the Guardians and Wards Act, 1890 and application of doctrine of res judicata/estoppel in respect of the same and held as under : “18. The appellant's argument based on estoppel and on the orders made by the court under the Divorce Act with respect to the custody of the children did not appeal to us. 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 > 5 Dr. Ashish Ranjan v. Anupama Tandon and Another [(2010) 14 SCC 274] OP (FC) No.202 of 2024 17 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. It is unnecessary to refer to some of the decided cases relating to estoppel based on consent decrees, cited at the bar. 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.” 16. The aforesaid judgment was reconsidered by this Court (two-Judge Bench) in Dhanwanti Joshi v. Madhav Unde [(1998) 1 SCC 112] , and after quoting the ratio of the said judgment, held as under : (SCC p. 122, para 21) “21. … However, we may state that in respect of orders as to custody already passed in favour of the appellant the doctrine of res judicata applies and the Family Court in the present proceedings cannot re-examine the facts which were 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 conducive to the child's welfare or that it has produced unsatisfactory results.” 17. In Jai Prakash Khadria v. Shyam Sunder Agarwalla [(2000) 6 SCC 598] and Mausami Moitra Ganguli v. Jayant Ganguli [(2008) 7 SCC 673], this Court held that it is always permissible for the wards to apply for the modification of the order of the court regarding the custody of the child at any stage if there is any change in the circumstances. (See also Vikram Vir Vohra v. Shalini Bhalla [(2010) 4 SCC 409] OP (FC) No.202 of 2024 18 18. It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the “moral and ethical welfare of the child must also weigh with the court as well as his physical well-being”. The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution, with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. (Vide Gaurav Nagpal v. Sumedha Nagpal [(2009) 1 SCC 42] 19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. (Vide Elizabeth Dinshaw v. Arvand M. Dinshaw [(1987) 1 SCC 42], Chandrakala Menon v. Vipin Menon [(1993) 2 SCC 6], Nil Ratan Kundu v. Abhijit Kundu [(2008) 9 SCC 413], Shilpa Aggarwal v. Aviral Mittal [(2010) 1 SCC 591] and Athar Hussain v. Syed Siraj Ahmed [(2010) 2 SCC 654]” 21. The Apex Court has lucidly explained the legal principles concerning child custody, emphasizing that the welfare and interests of the child are paramount in such decisions. The Courts have the authority OP (FC) No.202 of 2024 19 to modify custody orders if there are changes in circumstances that affect the well-being of the child. Even when orders are based on agreement/ understanding between parents, they can be revisited if the situation changes and it is deemed necessary for the welfare of the child. The main focus is always on ensuring the best possible environment for the child, rather than strictly adhering to the rights of the parents or past judicial decisions. The well-being of the child encompasses not only their physical health but also their moral and ethical welfare. Nowhere in the said judgment has it been stated that after the parties enter into a compromise as in the instant case, a fresh petition for custody and guardianship will be maintainable. On the other hand, what is stated is that orders are based on agreement/ understanding between parents, the orders passed by the Court can be revisited if the situation changes and it is deemed necessary for the paramount welfare of the child. 22. Upon reviewing the Rules under the Guardian and Wards Act, together with the Civil Procedure (ADR) Rules, Section 89, Order XXIII Rules 3 and 3A of the Code of Civil Procedure, and the pertinent sections of the Divorce Act, 1869, it is clear that the respondent had clear remedies under law. The appropriate action for the respondent would have been to file an interlocutory application during the original proceedings, seeking a modification of the custody order by OP (FC) No.202 of 2024 20 demonstrating a change in circumstances. The provisions of the Divorce Act, 1869, and the Rules established under the Guardians and Wards Act by the Kerala High Court, permit the respondent to pursue such an approach. This approach would not disrupt previous orders or initiate a new set of litigation but rather allows the respondent to substantiate a change in circumstances and request an adjustment to the custody arrangement as sanctioned by the applicable laws. Moreover, it has been observed that the parties have adhered to the terms of the Memorandum of Agreement, with the respondent going so far to state that he intends to file an execution petition to enforce these terms. As held earlier, the decision to give custody of the child to the petitioner was a conscious decision taken by the parties at the relevant stage and, it can hardly be categorized as a decision under force, pressure, or fraud. We are of the view that it would be inappropriate for the respondent to seek a reevaluation of a matter already resolved through a settlement, especially when legal remedies are available. Any technical errors or omissions by the Court in documenting the compromise and issuing a judgment should not obstruct the Court's responsibility to ensure that the parties are not left without remedies, but rather, should guide them to exhaust their legal options in accordance with the relevant laws and Rules that govern the matter. None of the above aspects were taken note of by the learned OP (FC) No.202 of 2024 21 Family Court while issuing the impugned orders. 23. In view of the discussion above, the petitioner is entitled to succeed. - a) Exts. P10 and P13 are set aside. - b) The Family Court, Thiruvananthapuram, is directed to reconsider Exts.P8 and P11 applications and pass fresh orders in accordance with law. - c) Alternatively, it would be open to the respondent to file appropriate application in the matter disposed of in terms of the compromise in the light of the provisions enshrined under the Divorce Act, 1869 seeking modification of custody, narrating the change of circumstances as observed above. If such an application is filed, the same shall be considered and appropriate orders shall be passed within 2 months. Sd/- ## **RAJA VIJAYARAGHAVAN V JUDGE** Sd/- ## **P.M.MANOJ JUDGE** das OP (FC) No.202 of 2024 22 ## **`APPENDIX OF OP (FC) 202/2024`** |**`PETITIONER `**|**`EXHIBITS`**| |---|---| |**`Exhibit P1`**|**`TRUE COPY OF THE MEDIATION REPORT ALONG WITH TER`**| ||**`AND`**<br>**`CONDITIONS`**<br>**`OF`**<br>**`SETTLEMENT`**<br>**`DATED`**<br>**`19-02-20`**| ||**`FILED`**<br>**`BEFORE`**<br>**`FAMILY`**<br>**`COURT,`**<br>**`THIRUVANANTHAPURAM`**| ||**`O.P.142/2016 AND 132/2016`**| |**`Exhibit P2`**|**`TRUE COPY OF THE JUDGMENT DATED 24-04-2018 IN O.`**| ||**`136/2016`**<br>**`ON`**<br>**`THE`**<br>**`FILE`**<br>**`OF`**<br>**`FAMILY`**<br>**`COUR`**| ||**`THIRUVANANTHAPURAM`**| |**`Exhibit P3`**|**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`O.P.(G&W)`**<br>**`496/2022`**<br>**`FILED`**| ||**`RESPONDENT BEFORE FAMILY COURT, THIRUVANANTHAPUR`**| ||**`ON 25-02-2022`**| |**`Exhibit P4`**|**`TRUE COPY OF I.A 2/2022 IN O.P.(G&W)496/2022 FIL`**| ||**`BY`**<br>**`RESPONDENT`**<br>**`BEFORE`**<br>**`FAMILY`**<br>**`COUR`**| ||**`THIRUVANANTHAPURAM`**| |**`Exhibit P5`**|**`TRUE COPY OF I. A 5/2023 IN O.P. NO.496/2022 FIL`**| ||**`BY`**<br>**`PETITIONER`**<br>**`BEFORE`**<br>**`FAMILY`**<br>**`COUR`**| ||**`THIRUVANANTHAPURAM`**| |**`Exhibit P6`**|**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE OBJECTION BY RESPONDENT AGAIN`**| ||**`EXHIBIT P5`**| |**`Exhibit P7`**|**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`ORDER`**<br>**`IN`**<br>**`I.A`**<br>**`5/23`**<br>**`IN`**<br>**`496/20`**| ||**`DATED`**<br>**`21-09-2023`**<br>**`PASSED`**<br>**`BY`**<br>**`FAMILY`**<br>**`COUR`**| ||**`THIRUVANANTHAPURAM`**| |**`Exhibit P8`**|**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`I.A.NO`**<br>**`6/23`**<br>**`(DESCRIBED`**<br>**`AS R. P.`**| ||**`6/23)`**<br>**`IN`**<br>**`O.`**<br>**`P(G`**<br>**`&W`**<br>**`)NO`**<br>**`496/2022`**<br>**`FILED`**| ||**`PETITIONER BEFORE FAMILY COURT ,THIRUVANANTHAPUR`**| |**`Exhibit P9`**|**`TRUE COPY OF THE OBJECTION DATED 01.11.2023 FIL`**| ||**`BY`**<br>**`RESPONDENT`**<br>**`IN`**<br>**`I.A.`**<br>**`NO`**<br>**`6/23`**<br>**`IN OP NO 496/20`**| ||**`BEFORE FAMILY COURT, THIRUVANANTHAPURAM`**| |**`Exhibit P10`**|**`TRUE COPY OF THE ORDER DATED 18.12.23 IN I.A.NO`**| ||**`/22`**<br>**`AND`**<br>**`6/23`**<br>**`IN`**<br>**`OP`**<br>**`496/2022`**<br>**`BY`**<br>**`FAMILY`**<br>**`COUR`**| OP (FC) No.202 of 2024 23 ## **`THIRUVANANTHAPURAM`** ``` ExhibitP11TRUECOPYOFI.A.NO7/24INOPNO496/22,STYL AS'PETITIONTOALTERTHEORDER'FILED PETITIONERBEFOREFAMILYCOURT,THIRUVANANTHAPUR ExhibitP12TRUECOPYOFTHEOBJECTIONDATED27.1.24FILED RESPONDENTBEFOREFAMILYCOURT,THIRUVANANTHAPUR ExhibitP13 TRUECOPYOFTHEORDERDATED16.02.2024INI. NO7/24INOP496/22PASSEDBYFAMILYCOUR THIRUVANANTHAPURAMALONGWITHTYPEDCOPY. ```