Smitha Antony v. Koshy Kuriyan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944 OP (FC) NO. 140 OF 2022** **AGAINST THE COMMON ORDER IN IA No.2/2021 AND IA No.5/2022 IN OP No.772/2021 OF FAMILY COURT, PALA** ## **PETITIONER:** SMITHA ANTONY AGED 43 YEARS D/O.ANTONY, VALAVANAL HOUSE, VECHUCHIRA P.O., RANNI VILLAGE, RANNI TALUK, PATHANAMTHITTADISTRICT, PIN - 686 511. BY ADVS. M.P.MADHAVANKUTTY MATHEW DEVASSI ANANTHAKRISHNAN A. KARTHA ## **RESPONDENTS:** KOSHY KURIAN AGED 47 YEARS S/O.KURIAN, KARUKAMPALLY HOUSE, NARIYANANI P.O., PONKUNNAM, KOTTAYAM DISTRICT, PIN - 686 506, NOW RESIDING AT KARUKAMPALLY HOUSE, ERATHUVADAKARA P.O., VELLAVOOR VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN - 686 543. BY ADVS. MANJU ANTONEY R.ANAS MUHAMMED SHAMNAD ## **OTHER PRESENT:** SRI.ANIL MALHOTRA, AMICUS CURIAE THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 05.04.2022, THE COURT ON 07.04.2022 DELIVERED THE FOLLOWING: O.P (FC) No.140 of 2022 2 # **A.MUHAMED MUSTAQUE & C.R SOPHY THOMAS, JJ.** ------------------------------------ ## O.P. (FC) No.140 of 2022 ------------------------------------ Dated this the 7[th] day of April, 2022 ## **J U D G M E N T** ## **Sophy Thomas, J.** The mother of four minor children is before us, challenging Ext.P10 order of the Family Court, Pala dismissing her prayer for interim custody, and permission to take the children to Australia. 2. The petitioner and respondent are husband and wife. Four children were born in their lawful wedlock. The parents and the children were all in Australia, as the petitioner was employed there as a Staff Nurse. In the year 2019, the respondent came back to his native along with the four children and since then, the children were under his care and custody. The elder child, Maria Koshy, lodged a complaint before Ponkunnam Police, alleging ill-treatment from the part of her father and a crime was registered against him. Thereafter, the elder child was with the maternal grandmother, and the other children continued with the father. The petitioner came O.P (FC) No.140 of 2022 3 down from Australia to see her children, but she was not permitted by the respondent. So, she filed O.P No.772 of 2021 before Family Court, Pala along with I.A No.2 of 2021 for interim custody of the three children, who were under the custody of the respondent. The Family Court directed the respondent to produce the children before the court on 19.01.2022. But the respondent failed to do so, and so, she approached this Court by filing O.P (FC) No.52 of 2022. This Court gave custody of the three children to the mother subject to visitorial rights of the father, and the O.P (FC) was disposed of directing the Family Court to take a decision on the prayer for interim custody. 3. Meanwhile, the petitioner filed I.A No.5 of 2022 before the Family Court for permitting her to take the children to Australia, as it will be better for their education and well-being. After admitting objections and hearing the rival contentions from either side, the Family Court passed Ext.P10 common order in I.A No.2 of 2021 and I.A No.5 of 2022 granting interim custody of the children to the petitioner only till 22.03.2022 and to return the three children to the respondent, as she goes back to Australia. Her prayer for permission to take them to Australia was also rejected. O.P (FC) No.140 of 2022 4 4. Assailing Ext.P10 order, petitioner/mother filed above O.P(FC) contending that, the elder daughter is being taken to Australia as permitted by Family Court, Pathanamthitta in O.P No.762 of 2021 filed by the respondent herein. The other three children are also having valid visa, so that the petitioner can take, all of them together to Australia now itself. If she is permitted, they can be admitted in Australian school, this academic year itself, so that they can continue their studies there, smoothly. Originally, the children were studying in Australia, and the respondent took them back to his native. He is living in a rented house and he has no job or income. No female members are there in his house to attend the children, especially the two adolescent girl children. Whenever he goes out, he is locking the children inside the rented house. He is not able to provide proper food, dress or education to the children. The girl children, who are in their adolescent age, needs frequent attention, and emotional support of their mother for their welfare and well-being. The petitioner is able to attend all their needs. The elder daughter, who is now 15 years old, is capable of attending the younger children, whenever the petitioner will be out for her job. O.P (FC) No.140 of 2022 5 5. We tried our level best to have an amicable settlement between the parties and persuaded them to go to Australia together with the children. But, the petitioner would say that, she is unable to bear the ill-treatment, both physical and mental, from the part of the respondent, and she is taking steps to get their marriage dissolved. 6. The O.P filed by the petitioner for getting guardianship and custody of the three children is pending before the Family Court. Only interim custody arrangements were made while the petitioner/mother was available here. It is true that, the petitioner/mother is employed in Australia as a Staff Nurse and she is financially capable to look after the children. She is ready to take the children to Australia and give them proper education and all facilities in life. If the petitioner is permitted to take all the children to Australia, they will grow together sharing the love and care between siblings. According to petitioner, with the money sent by her, the respondent was looking after the children. The younger three children were with the respondent from 2019 onwards and obviously, they are comfortable with their father. O.P (FC) No.140 of 2022 6 7. Now the question mooted before us is whether this Court exercising supervisory jurisdiction under Article 227 of the Constitution can permit a father or mother to take the children abroad when the dispute is pending between them in Family Court regarding guardianship and custody of the children, and there is no consensus arrived, regarding taking the children abroad. 8. We sought the assistance of Amicus Curiae Advocate Sri.Anil Malhotra who is an expert in the field of child custody matters, to get more insight into this issue. Learned Amicus Curiae appeared before this Court online and submitted that, jurisdictional Family Court is the proper forum to decide on the question of guardianship of the person or the custody of or access to any minor. The High Court exercising supervisory power under Article 227 of the Constitution cannot bye pass the Family Court to decide on the question of guardianship of the person or custody of or access to any minor. Before deciding the question of guardianship and custody, if one party is permitted to take the children abroad, the other party will be non-suited, as there is little scope for enforcing orders of an Indian Court in a foreign land. Moreover, India is not a signatory to the 1980 Hague convention on the civil O.P (FC) No.140 of 2022 7 aspects of international child abduction (Hague Abduction Convention) nor are there any bilateral agreement in force between India and Australia concerning international parental child abduction. 9. Going by Section 7(1) explanation (g) of the Family Courts Act, 1984, and Section 9 of the Guardian and Wards Act, 1890, it is manifestly clear that the suits and proceedings including the suit or proceeding where any question of guardianship of the person of any minor or his custody or access to him arises, whether governed by any personal law, or the provisions to the Guardian and Wards Act, would be cognizable only by the Family Court, if the matter arises within the area over which the jurisdiction is exercisable by the Family Court ( _Devilal Bhagat_ vs. _Rekha Bhagat_ (2008 (3) KLT S.N 14 (C.No.16). 10. O.P No.772 of 2021 filed by the petitioner for guardianship and custody of the three children is still pending before Family Court, Pala. Admittedly, the petitioner got custody and permission to take the elder child Maria Koshy to Australia. The respondent is opposing the prayer of the petitioner for custody of the three children and also her request to take the children to O.P (FC) No.140 of 2022 8 Australia. Before taking a decision, based on materials and evidence, as to who is more competent to be the guardian of the children, and with whom the custody of the children shall be more safe, taking into account the welfare and well-being of the children, the Family Court could not have permitted the mother to take the children abroad. Pending O.P, if the petitioner is permitted to take the children to Australia, the respondent will be non-suited. So, it is for the Family Court to take a decision regarding the guardianship and permanent custody of the younger three children. The prayer of the petitioner to take them to Australia has to be enquired into and adjudicated upon, taking into account all the aspects of their well-being and welfare, rather than the rival claims put forward by the warring couples. The court while exercising its parens patriae jurisdiction should keep an open eye to the factual aspects, and ground realities to find out what will be the best option available to ensure the welfare of the children rather than the rights asserted by the parties. 11. Now the mother is available in Kerala and so, as long as the mother is available here, she is entitled to keep custody of the children, reserving visitation rights for the father. Since the matter O.P (FC) No.140 of 2022 9 needs an urgent decision, as the children are school going, the Family Court, Pala can be directed to dispose O.P No.772 of 2021 without further delay. Pending that O.P, if the petitioner goes back to Australia, the younger three children has to be returned to the respondent, of course subject to the final decision in the O.P. So, Ext.P10 order needs no interference except to the extent that the children shall be under the care and custody of the petitioner, as long as she is available in Kerala, reserving visitation rights for the father. In the result, the O.P (FC) is disposed of directing the Family Court, Pala to dispose O.P No.772 of 2021 within a period of four months from today. The petitioner shall be permitted to adduce her evidence through electronic medium, if her physical presence is not possible at the time of evidence. We place on record our appreciation for the valuable assistance rendered by the Amicus Curiae Adv.Sri.Anil Malhotra. Sd/- **A.MUHAMED MUSTAQUE JUDGE** Sd/- **SOPHY THOMAS JUDGE** smp O.P (FC) No.140 of 2022 10 ## **APPENDIX OF OP (FC) 140/2022** PETITIONER EXHIBITS - Exhibit P1 A TRUE COPY OF THE O.P.NO.772/2021 DATED 20/12/2021 BEFORE THE FAMILY COURT, PALA. - Exhibit P2 A TRUE COPY OF THE I.A.NO.2/2021 IN O.P.NO.772/2021 BEFORE THE FAMILY COURT, PALA. - Exhibit P3 A TRUE COPY OF THE OBJECTION IN OP NO.772/2021 BEFORE THE FAMILY COURT, PALA. - Exhibit P4 A TRUE COPY OF THE OBJECTION IN I.A.NO.2/2021 IN O.P.NO.772/2021 BEFORE THE FAMILY COURT, PALA. - Exhibit P5 A TRUE COPY OF THE ORDER DATED 22/12/2021 IN I.A.NO.2/2021 IN O.P.NO.772/2021 BEFORE THE FAMILY COURT, PALA. - Exhibit P6 A TRUE COPY OF THE INTERIM ORDER DATED 11/02/02022 IN OP(FC) NO.52 OF 2022 PASSED BY THIS HON'BLE COURT. - Exhibit P7 A TRUE COPY OF THE INTERIM ORDER DATED 17/02/2022 IN OP(FC) NO.52 OF 2022 PASSED BY THIS HON'LE COURT. - Exhibit P8 A TRUE COPY OF THE JUDGMENT IN OP(FC) NO.52/2022 DATED 23/02/2022 PASSED BY THIS HON'BLE COURT. - Exhibit P9 A TRUE COPY OF THE I.A.NO.5/2022 IN O.P.NO.772/2021 BEFORE THE FAMILY COURT, PALA. O.P (FC) No.140 of 2022 11 Exhibit P10 A TRUE COPY OF THE COMMON ORDER IN I.A.NO.2/2021 IN AND I.A.NO.5/2022 IN O.P.NO.772/2021 PASSED BY FAMILY COURT, PALA. ## RESPONDENTS' EXHIBITS: NIL. True Copy P.S to Judge smp