Roy Panamkoodan alias Roy Poulose v. TiJi Daniel and Sri P. Deepak

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 17TH DAY OF MAY 2019 / 27TH VAISAKHA, 1941** **OP (FC).No. 305 of 2019** **OP 177/2019 of FAMILY COURT,ERNAKULAM** ## **PETITIONER :** **ROY PANAMKOODAN @ ROY POULOSE AGED 44 YEARS S/O.POULOSE, PANAMKOODAN HOUSE, KALLETTUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT680683.** **BY ADVS. SRI.DINESH R.SHENOY SRI.EBIN MATHEW** ## **RESPONDENT :** **TIJI DANIEL, AGED 31 YEARS D/O.T.D.DANIEL, JOHNS VILLA, CLRA 26, CHEMBISSERY LANE, NADAMA VILLAGE, THRIPUNITHURA (P.O), ERNAKULAM DISTRICT- 682301.** **BY ADVS. SRI.G.HARIHARAN SHRI.AMAL DEV D SMT.K.S.SMITHA SMT.T.T.SHANIBA SRI.M.V.VIPINDAS SRI.PRAVEEN.H.** **SRI P.DEEPAK - RESPONDENT** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP (FC).No. 305 of 2019** **2** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J.** The petitioner, who is the petitioner in O.P.No.177 of 2019 on the file of the Family Court, Ernakulam, which is an original petition filed under Section 10(1) (i) and (x) read with Section 19 of the Divorce Act, 1869, seeking a decree of divorce dissolving his marriage with the respondent herein, has filed this original petition under Article 227 of the Constitution of India, seeking an order directing the Family Court, Ernakulam to pass final orders in I.A.Nos.407 of 2019 and 2434 of 2019 in O.P.No.177 of 2019, as expeditiously as possible, after obtaining a detailed report from trained Counselors and such other report from any experts, if deemed necessary, in the light of the judgment of the Apex Court in _**Perry Kansagra v. Smriti Madan Kansagra [2019 (2) KHC 107 (SC)]**_ . The petitioner has also sought for an order allowing **OP (FC).No. 305 of 2019** **3** him to retain the custody of his three minor children till proper counseling is done, as contemplated in the law laid down by the Apex Court in the decision referred to supra and final orders are passed. 2. On 10.05.2019, when this writ petition came up for admission, this Court admitted the matter on file and issued notice by special messenger to the respondent. The petitioner was directed to be present in Court along with the minor children on 14.05.2019. Till such time, the petitioner was permitted to retain custody of the minor children. 3. On 14.05.2019, when this writ petition came up for consideration, this Court passed the following order; _“Heard the learned counsel on both sides. We have also interacted with the respondent and also the minor children, who are personally present before the Court._ _2. The learned counsel for the petitioner would submit that, as the petitioner is presently abroad, he could not be personally present in_ **OP (FC).No. 305 of 2019** **4** _Court today and that, he shall be personally present in Court on 17.05.2019._ _3. Having considered the submissions made by the learned counsel on both sides and after interacting with the minor children, we deem it appropriate to give interim custody of the minor children to the respondent mother till 17.05.2019._ _The respondent shall be personally present in Court on 17.05.2019 along with the minor children.”_ 4. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. We have interacted with the petitioner, the respondent and also the minor children. 5. Though various contentions/allegations have been raised in this original petition, in the counter affidavit filed by the respondent and also in the affidavits accompanying to various interlocutory applications, we do not propose to go into those contentions/allegations, since the original petition along with the interlocutory applications is pending consideration before the Family Court. **OP (FC).No. 305 of 2019** **5** 6. I.A.No.407 of 2019 is one filed by the petitioner seeking an order allowing him to have custody, maintenance and education of the minor children and I.A.No.2434 of 2019 is one seeking an order to modify Ext.P2 order dated 16.03.2019 passed in I.A.No.407 of 2019 to hold that the respondent shall not be given custody of the minor children and that, the custody of the children shall be with the petitioner and his family during the pendency of O.P.No.177 of 2019, with only visitorial right to the respondent, that too subject to strict conditions. O.P.No.177 of 2019 is now listed before the Family Court on 22.03.2019 along with the pending interlocutory applications. Therefore, it is for the petitioner and the respondent to raise all legal and factual contentions before that Family Court, at the time of consideration of the aforesaid interlocutory applications. 7. It is not in dispute that the respondent was **OP (FC).No. 305 of 2019** **6** not granted custody of the minor children on 30.04.2019 in terms of Ext.P2 order dated 16.03.2019 of the Family Court. On 02.05.2019, the petitioner filed I.A.No.2324 of 2019 in I.A.No.407 of 2019, seeking modification of Ext.P2 order. I.A.No.2214 of 2019 filed by the respondent, seeking an order to recall Ext.P2 order is also pending consideration before the Family Court. 8. Having considered the facts and circumstances of the case and after interaction with the respondent and the minor children, this Court passed the order on 14.05.2019, whereby interim custody of the minor children was granted to the respondent till 17.05.2019. Since the interlocutory applications are now listed for consideration before the Family Court on 22.05.2019, we deem it appropriate to extend the interim custody of the minor children granted to the respondent till 22.05.2019. The respondent shall permit the petitioner to interact with **OP (FC).No. 305 of 2019** **7** the minor children through video call. 9. The respondent herein shall produce the minor children before the Family Court on 22.05.2019. The interim custody of the minor children after 22.05.2019 shall be in terms of Ext.P2 order dated 16.03.2019 of the Family Court, subject to modification/variation, if any made by the Family Court, as sought for in I.A.No.2324 of 2019 filed by the petitioner and I.A.No.2214 of 2019 filed by the respondent. 10. The Family Court, Ernakulam shall finally dispose of I.A.Nos.407 of 2019, 2214 of 2019 and 2434 of 2019 in O.P.No.177 of 2019, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment, taking note of the law laid down in the judgment of the Apex Court in _**Perry Kansagra's case** (supra)._ All legal and factual contentions raised by the **OP (FC).No. 305 of 2019** **8** petitioner and the respondent are left open to be raised before the Family Court. This original petition is disposed of accordingly. **Sd/-** **ANIL K.NARENDRAN, JUDGE** **Sd/-** **R. NARAYANA PISHARADI, JUDGE** AV/17/5 **OP (FC).No. 305 of 2019** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF OP.177/2019, FAMILY COURT, ERNAKULAM.** **EXHIBIT P2** **TRUE PHOTOCOPY OF ORDER DATED 16.03.2019 IN I.A.NO.407/2019 IN O.P.NO.177/2019, FAMILY COURT, ERNAKULAM.** - **EXHIBIT P3 TRUE PHOTOCOPY OF I.A.NO.2434/2019 IN I.A.NO.407/2019 IN O.P.NO.177/2019, FAMILY COURT, ERNAKULAM.** **EXHIBIT P4 TRUE PHOTOCOPY OF I.A.NO.2435/2019 IN I.A.NO.407/2019 IN O.P.NO.177/2019, FAMILY COURT, ERNAKULAM.** - **EXHIBIT P5 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN EXT.P3 APPLICATION.** - **EXHIBIT P6 TRUE PHOTOCOPY OF I.A.NO.2214/2019 IN O.P.NO.177/2019, FAMILY COURT, ERNAKULAM.** **EXHIBIT P7 TRUE PHOTOCOPY OF COUNTER AFFIDAVIT DATED 01.05.2019 FILED BY THE PETITIONER IN I.A.NO.2214/2019 IN O.P.NO.177/2019, FAMILY COURT, ERNAKULAM.**