Reghu M. s/o Madhavan Nair v. Nandhini C.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 1ST DAY OF APRIL 2016/12TH CHAITHRA, 1938** **OP (FC).No. 600 of 2015 (R)** **----------------------------** ## **AGAINST THE ORDER IN I.A.2109/15 IN 955/2015 IN OP(G&W) 551/2015 of FAMILY COURT,TRIVANDRUM** **--------------------** ## **PETITIONER(S)/PETITIONER/PETITIONER:** **------------------------------------------------------------** **REGHU M. S/O.MADHAVAN NAIR, VALLABHAM, T.C. 8/857, THIRUMALA P.O., THIRUVANANTHAPURAM, NOW RESIDING AT FLAT NO.64, J.M.GARDENS, PALLIKKAVU TEMPLE ROAD, VADUTHALA, ERNAKULAM DISTRICT.** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU** ## **RESPONDENT(S)/RESPONDENT:** **----------------------------------------------** **NANDHINI C., AGED 35 YEARS, D/O.CHANDRAMATHI, RESIDING AT SOUPARNIKA T.C. 48/36(7), ARA 50, AMBALATHARA, THIRUVANANTHAPURAM - 695 026.** **BY ADV. SRI.R.V.SREEJITH** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 01-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No. 600 of 2015 (R) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** - **EXT.P-1: COPY OF THE ORIGINAL PETITION O.P NO.551 OF 2015 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM.** - **EXT.P-2: COPY OF THE INTERLOCUTORY APPLICATION IA NO.955 OF 2015 IN OP (G&W) NO.551 OF 2015 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM** - **EXT.P-3: COPY OF THE COUNTER IN IA NO.955 OF 2015 IN OP (G&W) NO.551 OF 2015 OF THE FAMILY COURT, THIRUVANANTHAPURAM** - **EXT.P-4: COPY OF THE ORDER IN IA NO.955 OF 2015 IN O.P(G&W) NO.551 OF 2015 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 4.7.2015** - **EXT.P-5: COPY OF THE JUDGEMENT OF THIS HONOURABLE COURT IN OP(FC) 373/2015 DATED 7.8.2015** - **EXT.P-6: COPY OF THE IA NO.2109/2015 IN IA 955/2015 IN OP(G&W) 551/2015 FILED BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM** - **EXT.P-7: COPY OF THE COUNTER IN IA 2109/2015 IN IA 955/2015 IN OP(G&W) 551/2015 BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM** - **EXT.P-8: COPY OF THE COPY OF THE ORDER IN IA NO.2109 OF 2015 IN IA NO.955 OF 2015 IN OP(G&W) 551/2015 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 20.11.2015** ## **RESPONDENT(S)' EXHIBITS: NIL** **----------------------------------------** **//TRUE COPY//** **P.A. TO JUDGE** **STK** ## **C.K. ABDUL REHIM & SHAJI P. CHALY, JJ.** ## **-------------------------------** ## **O.P.(F.C.) No.600 of 2015** ## **---------------------------------------------Dated this the 1[st] day of April, 2016** ## **JUDGMENT** ## **C.K. Abdul Rehim, J** Order passed by the Family Court, Thiruvananthapuram in I.A.2109/15 in I.A.955/2015 in O.P.(G&W) No.551/2015 is under challenge in this original petition which is instituted under Article 227 of the Constitution of India. The petitioner herein is the petitioner in the interim application and in the original petition before the Family Court and the respondent herein is the respondent. 2. The parties are husband and wife living separated due to matrimonial discord. The original petition was instituted by the petitioner herein seeking guardianship and custody of two minor children, namely Bharat aged 11 years and Karthik aged 4 years, at present. Along with the original petition, I.A.No.955/15 was filed seeking ## **O.P.(F.C.) No.600 of 2015 2** interim custody of the minor children. On 04.07.2015, as per directions issued by the Family Court, the wards were produced by the respondent and they were given custody to the petitioner from 2.00 p.m. till 4.15 p.m. It is mentioned in the impugned order that, on the said date both the parties have agreed to dispose of I.A. No.955/2015 in terms that the petitioner will be given custody of the minor children from 2.00 p.m. to 5.00 p.m. on every Sundays. It was also agreed upon that the children will be taken into custody from the gate of the house of the respondent and shall be returned there. I.A.No.2109/2015 was filed by the petitioner seeking review of the said order passed in I.A.No.955/2015, contenting that he was under the impression that the arrangement was made only till the disposal of I.A.No.955/15. It was also contended that, before passing such an order on 04.07.2015, the Family Court has not ascertained wishes of the minor children. 3. The petitioner contended before the court below that he is entitled to get custody of the minor children ## **O.P.(F.C.) No.600 of 2015 3** during weekends and also during school vacations. I.A.No.2109/2015 was opposed by the respondent contending that the order dated 04.07.2015 was passed on the basis of a consensus and there exists no ground to review the same. It was also alleged that, during interim custody the petitioner is tutoring the children and compelling them to depose before the court that the respondent is manhandling them. 4. Evidently, the petitioner had challenged the order of the Family Court in I.A.No.955/2015, dated 04.07.2015, in an earlier original petition filed before this court as O.P.(F.C.) No.373/2015. By virtue of Ext.P5 judgment this court disposed of the said case by reserving liberty to the petitioner to approach the Family Court for seeking modification of the order with respect to custody during vacation and on such other matters. It was further observed by this court that, if any such application is filed, it is for the Family Court to consider the same and to pass appropriate orders. Pointing out the directions contained in Ext.P5 judgment ## **O.P.(F.C.) No.600 of 2015 4** of this court, the petitioner contended before the court below that the order dated 04.07.2015, in I.A.No.955/2015 will prohibit the petitioner from seeking modification and therefore the said order is to be reviewed. But the court below found that there is no basis for such a contention. It is found that, when this court had granted specific liberty to the petitioner to seek modification during appropriate time with respect to interim custody and such other matters, there exists no specific reason to review the order passed on 04.07.2015. I.A.No.2109/2015 was dismissed by the court below through Ext.P8 order. It was aggrieved by the said order that the petitioner is approaching this court, invoking the supervisory jurisdiction vested under Article 227 of the Constitution of India. 5. Heard; counsel on both side. On an active consideration of the facts enumerated as above, we are agreeing with the findings rendered by the Family Court that there existed no grounds to review the order passed on 04.07.2015 in I.A.955/2015. However we take note of ## **O.P.(F.C.) No.600 of 2015 5** the fact that this court had issued direction to the Family Court to consider the application if any filed seeking modification of the arrangement regarding the interim visitation. In that sense of the matter, the Family Court ought not have dealt with the matter, dehors the technicalities. The court ought have considered whether any modification sought for with respect to the interim right of visitation/custody need to have been allowed or not. 6. We take note of the fact that the original petition pending before the Family Court is of the year 2015. It is incumbent on the part of the Family court to take effective steps to dispose of the original petition at the earliest. It is not feasible for that court to consider applications filed one after another seeking visitation/interim custody of the children, pending disposal of the original petition. It is always practical and feasible to have an interim arrangement made till the disposal of the original petition, rather than considering question of granting interim custody on every occasion of ## **O.P.(F.C.) No.600 of 2015 6** holidays and vacations. 7. After hearing counsel on both side we are of the opinion that an arrangement pending disposal of the original petition with respect to interim custody and visitation need to be provided. We take note of the fact that the elder child is now aged 11 years. But the younger child is aged only 4 years. Both of them are now staying with the mother. The father, who is the petitioner herein, is employed at Ernakulam, eventhough his permanent residence is at Thiruvananthapuram, and his parents are available there. In our considered opinion, appropriate visitation and access need to be provided to the petitioner with respect to both the children. Learned counsel for the respondent vehemently opposed granting of overnight custody of the younger child, contending that he is aged 4 years only. Having considered the entire factual scenario and taking into consideration of the welfare and well being of both the children, which should be the paramount consideration, we are inclined to order the following arrangements; ## **O.P.(F.C.) No.600 of 2015 7** i. The petitioner herein shall be given custody of both the children on every 2[nd] and 4[th] Saturdays. The petitioner shall take custody of the children from the residence of the respondent at 10.00 a.m. on such days. The petitioner will be at liberty to take both the children to his parental house at Thirumala, Thiruvananthapuram. The younger child namely, Karthik shall be returned back custody to the respondent before 5.00 p.m. on the same day itself. The petitioner will be entitled to have over night custody of the elder child till 5.00 p.m. on the succeeding Sundays. The elder child also shall be returned back custody before 5.00 p.m. on the succeeding Sundays. The above arrangement will start operative from 09.04.2016. ii. With respect to mid-summer holidays, the petitioner will be entitled to have custody of the elder child for a period of one month during the 1[st] half. With respect to the summer holidays in the year 2016, it is submitted by the learned counsel for the ## **O.P.(F.C.) No.600 of 2015 8** respondent that the elder child will be handed over custody from 17.04.2016 till 16.05.2016. So also, during Onam and Christmas holidays, the elder child shall be given custody for a period of 5 days each during the 1[st] half, starting from the next day of closing of the school. - iii.During interim custody of the elder child on vacations, the child shall be kept in the company of the petitioner. In case he is not in a position to stay with the child due to any reasons in connection with his employment on any particular date or dates, the child shall be kept with custody of the parents of the petitioner. - iv.The younger child shall be given on visitation even during the period of vacation when the elder child is with the custody of the petitioner. - v. It is made clear that the petitioner will be entitled to seek overnight custody of the younger child after completion of a period of five months from April 2016, after the said child gets acquainted with the ## **O.P.(F.C.) No.600 of 2015 9** petitioner and his parents, for which the petitioner is given liberty to approach the Family Court seeking appropriate arrangements. It is made clear that the above arrangement will continue till the disposal of the original petition, subject to liberty for seeking modification mentioned as above, unless there is any substantial change of circumstances brought to the notice of the Family Court. Sd/- **C.K. ABDUL REHIM JUDGE** Sd/- **SHAJI P. CHALY JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//