Sucheta Harry v. Nimal Pratheep, Jitha Pratheepkumar and Pratheepkumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942** **OP (FC).No.27 OF 2021** ## **AGAINST THE ORDER IN I.A.NO.4906/2020 IN GOP 1384/2019 OF FAMILY COURT,THRISSUR** ## **PETITIONER:** **SUCHETA HARRY AGED 34 YEARS D/O HARRY, THANDAYAN HOUSE, THALIKKULAM VILLAGE, THALIKKULAM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT** **BY ADVS. SRI.BIJU MARTIN SRI.M.M.SALIM** ## **RESPONDENTS:** **1 NIMAL PRATHEEP AGED 35 YEARS S/O PRATHEEP, KADAVIL HOUSE, POOTHOLE P.O.,THRISSUR TALUK, PIN-680 004, REPRESENTED BY POWER OF ATTORNEY HOLDER AND MOTHER JITHA PRATHEEPKUMAR. 2 JITHA PRATHEEPKUMAR, AGED 55 YEARS W/O PRATHEEPKUMAR, KADAVIL HOUSE, POOTHOLE P.O.,THRISSUR TALUK, PIN-680 004, 3 PRATHEEPKUMAR, AGED 63 YEARS S/O LATE SUKUMARAN, KADAVIL HOUSE, POOTHOLE P.O.,THRISSUR TALUK, PIN-680 004,** **BY ADV. SRI.P.K.MANOMOHANAN** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No.27 OF 2021** **2** ## **JUDGMENT** Dated this the 23rd day of February 2021 ## C.S Dias (J) This original petition is filed, seeking to set aside the order in I.A.No.4906/2019 (Ext.P3) in GOP No.1384/2019 of the Family Court, Thrissur. 2. The petitioner in this original petition is the respondent in O.P.No.1384/2019 and the respondents in this original petition are petitioners in O.P.No.1384/2019. 3. The case of the petitioner in this original petition is that she is the former wife of the 1[st] respondent. Their marriage was dissolved by mutual consent as per Ext.P2 judgment. In the joint petition that was filed, which led to Ext.P2 judgment, there was a specific condition that the minor child named 'Ishanvi' born to the couple on 31.12.2013, would be in the permanent custody of the petitioner. Also, it **OP (FC).No.27 OF 2021** **3** was agreed that if the petitioner is desirous of taking the child abroad, she should consult the 1[st] respondent. The petitioner has got placement in Canada and she has been permitted to take the child along with her. In the said circumstances, she sought the permission of the 1[st] respondent, who instead of granting permission, immediately filed O.P.No.1384/2019 seeking the permanent custody of the child. As the 1[st] respondent is employed in Gulf, he is represented by his parents-respondents 2 and 3. The 1[st] respondent also filed I.A.No.3455/2019 seeking an order of temporary injunction to restrain the petitioner from removing the child from the jurisdiction of the Court and I.A.No.1 of 2020, to implead his parents as additional parties in O.P. No.1384/2019, I.A.No.2 of 2020, to amend the pleadings and I.A.No.3 of 2020, for the interim custody of the child. The petitioner filed I.A.No.4906/2019, seeking permission to take the **OP (FC).No.27 OF 2021** **4** child to Canada. 4. The Family Court consolidated and jointly heard the above applications and by the impugned common order dismissed all the applications. 5. Aggrieved by the dismissal of I.A.No.4906 of 2019 by Ext.P3 order, the petitioner is before this Court. 6. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 7. Undisputedly, as per the terms and conditions in Ext.P1 joint petition, which led to the passing of Ext.P2 decree of divorce by mutual consent, the petitioner and the 1[st] respondent had agreed that the permanent custody of the child would be with the petitioner and that she has the right to take the child abroad in consultation with the 1[st] respondent. Now, the petitioner has got a placement in Canada and desires to take the child with her to **OP (FC).No.27 OF 2021** **5** Canada. The 1[st] respondent is employed in the Gulf. The child is admittedly living in India under the care and custody of the grandparents. 8. The Hon'ble Supreme Court in **Amithkumar vs. Sonali and others** [AIR 2018 SC 5312] has held that when the parties have agreed in a joint petition regarding the custody of the child, they are bound by such condition, which is akin to an agreement. 9. The respondent does not dispute the condition that the petitioner has the right to take the child abroad. 10. Considering the fact that the parents are both employed abroad and the child is left in the custody of the grandparents and the parties have agreed that the child can be taken abroad, in the eventuality of the petitioner securing an employment abroad, we are of the considered opinion that to secure the paramount welfare and best interest of the **OP (FC).No.27 OF 2021** **6** child, it would be advisable to permit the child to be taken by the petitioner to Canada. 11. Nevertheless, going by the ratio laid down in **Yashita Sahu v. State of Rajasthan** [2020 SCC online SC 50] the petitioner can be granted permission to take the child abroad, subject to reservation of the contact and visitation rights of the 1[st] respondent. 12. In the result, we allow this original petition by setting aside Ext.P3 order, and permit the petitioner to take the child to Canada, subject to the following conditions: (i) The petitioner shall permit the 1[st] respondent to have contact rights with the child on every Saturday and Sunday between 8.00 p.m and 8.30 p.m Indian standard time over the Zoom or such other mutually agreed virtual platform. - (ii) Before the child is taken abroad, the - petitioner shall file an undertaking before the **OP (FC).No.27 OF 2021** **7** Family Court, undertaking to comply with the directions in this judgment and also furnish her mobile number, attested copy of of her passport and resident permit, permanent address in Canada and India and e-mail address. (iii) A solvent surety shall also execute an undertaking before the Family Court undertaking that the petitioner would comply with the directions in this judgment in its letter and spirit. (iv) The petitioner shall bring the child to India, once a year and give interim custody to the 1[st] respondent, for at least 15 days a year, subject to the convenience of both the petitioner and 1[st] respondent and education of the child. (v) The petitioner shall not apply or obtain citizenship of any other Country for the child, without the written consent and permission of the 1[st] respondent/Court. (vi) The parties are at liberty to move the **OP (FC).No.27 OF 2021** **8** Family Court, in the future, for modification of the contact and visitation rights and the interim custody of the child. **Sd/-** **A.MUHAMED MUSTAQUE JUDGE** **Sd/-** **C.S.DIAS JUDGE** SAS/23/02/2021 **OP (FC).No.27 OF 2021** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE JOINT APPLICATION FILED BY THE PETITIONER & 1ST RESPONDENT UNDER SECTION 13(B) OF THE HINDU MARRIAGE ACT** **EXHIBIT P2 TRUE COPY OF THE ORDER IN OP 1927/2016 DATED 9.6.2017** **EXHIBIT P3 TRUE COPY OF THE COMMON ORDER COPY OF THE COMMON ORDER IN IA 4906 OF 2019 IA 1 OF 2020, IA 2 OF 2020 AND IA 3 OF 2020 IN GOP NO 1384 OF 2019 DATED 13.3.20** **RESPONDENTS' EXHIBITS:-** **NIL** //TRUE COPY// P.A. TO JUDGE