Allowed

V.G.Rajesh v. Megha

Kerala HC27 Nov 2019Mat.Appeal/842/2019

Case brief

AI extract

What is this about?

Appeal in matrimonial dispute regarding custody of minor son. Court upheld Family Courts order granting custody to mother. Permission granted for mother to take child to Dubai on condition she executes bond for handing over child to appellant for one month annually during summer vacation.

What did the court decide?

Respondent permitted to take child to Dubai on executing a bond to hand over child to appellant for one month annually during school summer vacation.

V.G.Rajesh Vs Megha — Child Custody and Guardianship | Kerala HC (2019)

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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 K.HARILAL

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941

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Mat.Appeal.No.842 OF 2019

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AGAINST THE JUDGMENT IN OP 1013/2014 OF FAMILY COURT, IRINJALAKUDA

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APPELLANT/RESPONDENT:

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V.G.RAJESH

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AGED 42 YEARS

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S/O.VAKKAYIL GANGADHARAN, KARLAM VILLAGE AND P.O, PULLATHARA DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT PIN-680711

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BY ADV. SRI.RAJESH CHAKYAT

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RESPONDENT/PETITIONER:

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MEGHA

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AGED 28 YEARS

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D/O.PACHERICHANDRAN, MANAVALASSERI VILLAGE, KOMBARA DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT PIN-680121

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R1 BY ADV. SRI.M.R.VENUGOPAL R1 BY ADV. SMT.DHANYA P.ASHOKAN

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2019, THE COURT ON 27-11-2019 DELIVERED THE FOLLOWING:

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Mat.Appeal.No.842 OF 2019

JUDGMENT

Dias,J.

The petitioner in O.P. No.1013/2014 on the file of the Family Court, Irinjalakuda is the appellant herein. His wife, who was the respondent before the Family Court, is the respondent in this appeal.

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2. The appellant filed the original petition seeking permanent custody of his minor son, Arpith born on 16.02.2009.

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3. It was the case of the appellant that the respondent was not looking after

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to the welfare and upbringing of his son.

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According to the appellant, the respondent was not interested in the

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Mat.Appeal.No.842 OF 2019

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well-being of the child, who was not growing in a family atmosphere conducive to the welfare of a child. The appellant

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further averred that his love and affection was highly necessary for the

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best interest of his son.

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4. The respondent opposed the original petition by filing a written objection, inter alia, contending that

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after the death of the appellant's father, his mother has become mentally imbalanced.

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5. The respondent asserted that there were frequent quarrels in the appellant's tharavadu house which was not conducive to the welfare of the child.

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The appellant did not have a regular job

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and he is an accused in several criminal

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cases.

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6. The learned Judge of the Family

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Court consolidated the trial of the

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original petition with the other

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connected cases between the parties.

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7. PW1 to PW7 were examined on the

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side of the respondent and Exts. A1 to A8 series were marked through them. RW1

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and RW2 were examined on the side of the appellant. Exts.X1 to X8 series were summoned and marked in evidence.

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8. The Family Court, after

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evaluating the pleadings, evidence on record, and the authoritative precedents of the Hon'ble Supreme Court, and after interacting with the minor child, held

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that the appellant was not entitled to have the permanent custody of his son. The learned Judge, however, granted visitation rights to the appellant, to have custody of his son on second Saturday of every month between 11 a.m

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and 4 p.m.

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9. Aggrieved by the order passed by the Family Court, the appeal is filed.

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10. Heard Adv.Rajesh Chakyat, the learned counsel for the appellant and Adv.Dhanya P.Asokan, the learned counsel for the respondent.

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11. During the pendency of the appeal, the respondent, through her power of attorney holder, filed I.A No.3/2019 seeking permission of this Court to take

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the minor child along with her to Dubai, U.A.E, where she is presently employed.

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12. It is her assertion in the affidavit accompanying the application that, her mother recently passed away and only her father is at her parental home to look after the affairs of the child. She further asserts that she is presently working in Air India Cargo Division in Dubai and proposes to take the child as well as her father to Dubai.

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13. The application was vehemently opposed by the appellant. He filed a written objection, inter alia, contending that the appellant is capable and willing to take care of the best interest of his minor son and that there is no necessity

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to send the child to Dubai, along with

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the respondent.

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14. In view of the fact that the

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counsel for the parties were prepared to hear the appeal itself, we have considered the application along with the appeal, to give a quietes to the appeal itself.

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15. It is trite law that, it is the paramount welfare and best interest of the minor child which has to be looked into by courts while ordering custody of a child to either of the parents.

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16. In the case on hand, the Family Court, by a detailed order, after evaluating the pleadings, evidence and the binding precedents of the Hon'ble

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Supreme Court, has come to the justifiable conclusion that, the paramount welfare of the child would be secured, if it is entrusted to the respondent and that the appellant can be provided with visitation rights on second Saturday of every month between 11 a.m. and 4 p.m.

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17. We have also re-appreciated the pleadings and the oral and documentary evidence on record. There is nothing on record that displaces the findings of the Family Court. The learned Judge has rightly concluded that child's welfare would be better secured with the respondent and visitation rights be given to the appellant. We do not think that

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Mat.Appeal.No.842 OF 2019

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there is any illegality or infirmity in the impugned order passed by the Family Court, in granting permanent custody of the child, who has just completed 10 years, to the respondent with the visitation rights of the appellant. It would be for the overall upbringing and best interest of the child, if he grows up with his mother with the additional care of the child's maternal grandfather. Moreover, the respondent is presently well employed in Dubai. On the other hand, we do not find that there is any other person at the respondent's residence, to look after to the welfare of the minor child. Therefore, it is optimum that the child grows with his

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mother.

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18. Having regard to the facts and circumstances of the issue, particularly that the respondent is presently employed in Dubai, we feel it just and appropriate that the respondent be granted permission to take the child to Dubai, on condition that the appellant is given custody of the child for a month every year, during the child's school summer vacation. If such an arrangement is made, we are certain that it would secure the best interest and paramount welfare of the child, who would be able to live with both his parents, which would be conducive for the child's welfare.

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In the result, the above Mat. Appeal

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is disposed as follows:

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(i) The permanent custody of the

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child Arpith is granted to the respondent.

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(ii) The respondent shall hand over

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the custody of the child to the appellant, for a period of one month every year during the child's school summer vacation.

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(iii) It shall be the sole responsibility of the respondent to bring and hand over the child to the appellant at the Family Court, Irinjalakuda and take back the child from the court premises after the one month period at her own expense.

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(iv) The respondent is permitted to take the child to Dubai on condition that she shall execute a simple bond before the Family Court, Irinjalakuda in O.P. No.1013/2014, undertaking that she would in compliance with this judgment,hand over the interim custody of the child to the appellant for a period of one month every year during the child's school summer vacation, and that in case of any violation of the above directions,the appellant would be at liberty to move the Family Court to take coercive steps against the respondent to secure the presence of the child including taking steps to get the passport of the respondent impounded through the

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competent statutory authority.

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(v) Both the appellant and the

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respondent would be at liberty to move

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the Family Court, Irinjalakuda by appropriate application, if there is any change in circumstances to seek for any modification/alteration of the above directions/conditions.

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(vi) The parties are directed to

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suffer their respective costs.

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Sd/-K.HARILAL,JUDGE

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Sd/- C.S.DIAS,JUDGE

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ma26/11/2019

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/True copy/ P.S to Judge

V.G.Rajesh v. Megha

Case brief

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What did the court decide?

V.G.Rajesh v. Megha

Case brief

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