Dismissed

Reena Viju v. Viju Thomas

Kerala HC27 Nov 2012OP (FC)/4036/2012

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an interim custody order granting custody of two minor daughters to their father. The Court held the order was welfare-based and refused interference under Article 227 but directed the Family Court to expedite the final decision within three months.

What did the court decide?

Challenged interim custody order dismissed; final decision directed to be passed within three months.

Reena Viju Vs Viju Thomas — Child Custody and Guardianship | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

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TUESDAY, THE 27TH DAY OF NOVEMBER 2012/6TH AGRAHAYANA 1934

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OP (FC).No. 4036 of 2012 (R)

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ORDER IN IA.NO.313/2012 IN OP(G& W).259/2012 of FAMILY COURT, THIRUVALLA

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PETITIONER(S)/RESPONDENT : -------------------------

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REENA VIJU, AGED 34 YEARS PONTHANAMKUZHY VEEDU, PARAKULAM, THANNITHODU MURI THANNITHODU VILLAGE, KOZHENCHERY TALUK NOW RESIDING AT PONTHANAMKUZHY VEEDU, THEKKUTHODU, THANNITHODU VILLAGE, KOZHENCHERY TALUK.

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BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL

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RESPONDENT(S)/PETITIONER :

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VIJU THOMAS, AGED 39 YEARS, KUTTIPALANIKKUNNATHIL, KAIPUZHA NORTH P.O. KULANADA VILLAGE, KOZHENCHERY TALUK, PIN-689 645.

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 27-112012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O.P.(F.C.) 4036/12

APPENDIX

PETITIONER'S EXTS.:

EXT.P1: TRUE COPY OF THE PETITION IN O.P.(G & W)NO.259/12 FILED BEFORE THE FAMILY COURT, THIRUVALLA.

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EXT.P2: TRUE COPY OF THE PETITION IN I.A.NO.313/12 IN O.P.(G & W) NO.259/12.

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EXT.P3: TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.313/12 IN O.P.(G & W) NO.259/12.

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EXT.P4: TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT, THIRUVALLA IN IA.NO.313/12 IN O.P.(G& W) NO.259/12.

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PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.

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O.P.(F.C.). No.4036 of 2012

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---------------------------------------------------Dated this the 27^th day of November, 2012

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Judgment

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Pius C. Kuriakose, J.

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Under challenge in this Original Petition filed under Article 227 of the Constitution by the petitioner who is the mother of

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two minor daughters aged respectively 11 years and 8 years is Ext.P4 order passed by the Family Court, Thiruvalla in I.A.No.313 of 2012 in O.P.(G&W) No.259 of 2012. We have gone carefully through the impugned order. We have heard the submissions of Mr.Vinoy Varghese Kallummoottil, learned counsel for the petitioner. We find that under the impugned order, interim custody of the two minor daughters has been given to the respondent herein, the father. The father has been preferred by the learned Family Court to the mother in the matter of custody of the children for valid reasons. It has been clearly found relying on a sworn statement given by the petitioner herself before a Judicial Magistrate that she has been living in adultery with one Rajesh despite the fact that she is married to the respondent and

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O.P.(F.C.) 4036/12 2

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she is the mother of two minor daughters. It has been found that unlike the respondent, the petitioner does not have any fixed source of income. It has been found that along with the respondent, his mother is also residing. In short, it is considering the welfare of the minor children that the learned Family Court has passed the impugned order entrusting the custody of the children with the father, at the same time, giving visitation right

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to the petitioner once in a week either in the house of the respondent-father or in the school where the children are to be admitted. The submission of Mr.Vinoy Varghese was that notwithstanding the visitation rights, the petitioner is not permitted by the respondent to exercise the above visitation right. The petitioner is virtually prevented from seeing her children. Even if the petitioner is a very bad woman, the fact is that she is the mother of two minor children and she should be permitted to see her children.

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Going by Ext.P4, mother has been given right to visit and

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interact with the children once in a week preferably in the last working day of the week after the school hours either in the

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O.P.(F.C.) 4036/12 3

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house of the respondent or in the school. If the above visitation right cannot be enjoyed by the petitioner on account of any obstruction caused in the matter by the respondent, the petitioner can bring the matter to the notice of the Family Court and we are sure that the Family Court will implement its orders effectively. The question that arises for consideration before us is whether the visitorial jurisdiction of this court under Article 227 of the Constitution can be invoked in this case for interfering with Ext.P4. Keeping in mind the yardsticks to be applied while exercising jurisdiction under Article 227 of the Constitution, we are of the view that Ext.P4 is not liable to be interfered with. The challenge against Ext.P4 fails and the Original Petition will stand dismissed.

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However, we direct the Presiding Officer of the Family Court, Thiruvalla to expedite the matters in O.P.(G&W)No.259 of 2012 and take a final decision in that O.P. at the earliest and at any rate within three months of receiving copy of this judgment. If objections have already been filed by the petitioner to the O.P., the learned Family Court will decide the main O.P. on the basis of

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O.P.(F.C.) 4036/12

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the evidence which comes on record in the case and the court should not be unduly influenced by the findings entered in Ext.P4.

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PIUS C. KURIAKOSE, JUDGE.

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BABU MATHEW P. JOSEPH, JUDGE.

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srd

Reena Viju v. Viju Thomas

Case brief

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Reena Viju v. Viju Thomas

Case brief

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