This writ petition challenges a Family Court order granting the father weekend custody of minor children while the mother is abroad. The High Court upheld the order, emphasizing the child's welfare and right to affection from both parents.
Original Petitions dismissed; Family Court order allowing respondent weekend custody and video call access upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 8TH DAY OF NOVEMBER 2022/17TH KARTHIKA, 1944 O.P.(FC) NO. 345 OF 2022
AGAINST THE ORDER DATED 25.04.2022 IN I.A.NO.12 OF 2022 IN O.P.(G&W) NO.574 OF 2019 OF THE FAMILY COURT, PALA PETITIONER:
MINU E. MATHEW,
AGED 32 YEARS, D/O CAPTAIN MATHEW VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, MATHEW VARGHESE, AGED 61 YEARS, S/O VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, PIN – 682507.
BY ADVS. NIRMAL V NAIR MANU TOM THOMAS M.ANEESH ARATHI PRABHAKARAN
RESPONDENT:
RAKESH JOSE,
S/O JOSEKUTTY, AGED 34 YEARS, KAYATHINKARA HOUSE, KATTAPANA VILLAGE, UDUMBANCHOLA TALUK, KATTAPANA SOUTH P.O., IDUKKI DISTRICT, PIN – 685515.
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O.P.(FC) Nos.345, 347 & 348 of 2022
BY ADVS. Abdul Rasac ABDUL RAOOF PALLIPATH K.R.AVINASH
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 28.10.2022, ALONG WITH OP (FC).347/2022, 348/2022, THE COURT ON 08.11.2022 DELIVERED THE FOLLOWING:
O.P.(FC) Nos.345, 347 & 348 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 8TH DAY OF NOVEMBER 2022/17TH KARTHIKA, 1944
O.P.(FC) NO. 347 OF 2022
AGAINST THE ORDER DATED 25.04.2022 IN I.A.NO.2 OF 2021 IN O.P.(G&W) NO.651 OF 2021 OF THE FAMILY COURT, PALA PETITIONERS:
1 MINU E. MATHEW AGED 32 YEARS, D/O CAPTAIN MATHEW VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, MATHEW VARGHESE, AGED 61 YEARS, S/O VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, PIN – 686507.
2 MATHEW VARGHESE, AGED 61 YEARS, S/O VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, PIN – 686507.
BY ADVS. NIRMAL V NAIR MANU TOM THOMAS M.ANEESH ARATHI PRABHAKARAN
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O.P.(FC) Nos.345, 347 & 348 of 2022
RESPONDENT:
RAKESH JOSE
S/O JOSEKUTTY, AGED 34 YEARS, KAYATHINKARA HOUSE, KATTAPANA VILLAGE, UDUMBANCHOLA TALUK, KATTAPANA SOUTH P.O., IDUKKI DISTRICT, PIN – 685515.
BY ADVS. ABDUL RASAC ABDUL RAOOF PALLIPATH K.R.AVINASH
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 28.10.2022, ALONG WITH OP (FC).345/2022 AND CONNECTED CASES, THE COURT ON 08.11.2022 DELIVERED THE FOLLOWING:
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O.P.(FC) Nos.345, 347 & 348 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 8TH DAY OF NOVEMBER 2022/17TH KARTHIKA, 1944
O.P.(FC) NO. 348 OF 2022
AGAINST THE ORDER DATED 25.04.2022 IN I.A.NO.3 OF 2022 IN O.P.(G&W) NO.480 OF 2019 OF THE FAMILY COURT, PALA PETITIONER:
MINU E. MATHEW,
AGED 32 YEARS, D/O CAPTAIN MATHEW VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, MATHEW VARGHESE, AGED 61 YEARS, S/O VARGHESE, KOOTUMMEL HOUSE, KANJIRAPPALLY P.O., KANJIRAPPALLY VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, PIN – 686507.
BY ADVS. NIRMAL V NAIR MANU TOM THOMAS M.ANEESH ARATHI PRABHAKARAN
RESPONDENT:
RAKESH JOSE
AGED 33 YEARS, S/O JOSEKUTTY, KAYATHINKARA HOUSE, KATTAPANA VILLAGE, UDUMBANCHOLA TALUK, KATTAPANA SOUTH P.O., IDUKKI DISTRICT, PIN – 685515.
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O.P.(FC) Nos.345, 347 & 348 of 2022
BY ADVS. ABDUL RASAC ABDUL RAOOF PALLIPATH K.R.AVINASH
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 28.10.2022, ALONG WITH OP (FC).345/2022 AND CONNECTED CASES, THE COURT ON 08.11.2022 DELIVERED THE FOLLOWING:
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O.P.(FC) Nos.345, 347 & 348 of 2022
JUDGMENT
Ajithkumar, J.
These Original Petitions under Article 227 of the Constitution of India are filed by the mother of minor children Jayden Joseph Rakesh, aged 5 years and Jerami Mathew Rakesh, aged 3 years. The petitioner challenges common order dated 25.04.2022 of the Family Court, Pala in I.A.No.12 of 2022 in O.P.(G&W) No.574 of 2019, I.A.No.2 of 2021 in O.P.(G&W) No.651 of 2021 and I.A.No.3 of 2022 in O.P.(G&W) No.480 of 2019.
admitted. Notices were ordered to be served on the respondent. Operation of the impugned order was stayed. However, the order of the Family Court dated 20.12.2021, which allowed the respondent to have visitation right to the younger child was directed to be continued. As per the order dated 20.07.2022 both sides were directed to attend the Ernakulam Mediation Centre on 27.07.2022. Mediation, however, failed.
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O.P.(FC) Nos.345, 347 & 348 of 2022
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O.P.(FC) Nos.345, 347 & 348 of 2022
petitioner. Following the dispute between the parties regarding custody of the children, the petitioner filed O.P.(G&W) No.480 of 2019 before the Family Court, Pala for permanent custody of the elder child. The respondent filed O.P.(G&W) No.574 of 2019 for getting permanent custody of the elder child. He also filed O.P.(G&W) No.651 of 2021 for getting interim custody of the younger child.
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O.P.(FC) Nos.345, 347 & 348 of 2022
Kanjirappally. The said order was apparently a consent order. However, the respondent challenged the said order by filing O.P.(FC) No.66 of 2022 before this Court under Article 227 of the Constitution of India. As per Ext.P8 judgment dated 16.03.2022 that Original Petition was dismissed without prejudice to the right of the petitioner to approach the Family Court seeking modification of Ext.P7 order as allowed under law. He thereafter filed interlocutory applications, on which the impugned order was passed.
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O.P.(FC) Nos.345, 347 & 348 of 2022
school, the respondent should not have been allowed to take the children to his residence, which is 70 kms. away. Permission given to the respondent to interact with the children through video call or other electronic means three days in a week also adversely affects the studies and mental health of the children. The learned counsel accordingly would submit that Ext.P11 order has to be set aside being perverse and illegal.
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O.P.(FC) Nos.345, 347 & 348 of 2022
the next day before 6.00 p.m. The respondent is also allowed to interact with the children between 6.00 p.m. and 7.00 p.m. through video call or other electronic means, three days a week. The parties were allowed to choose other convenient mode for the purpose, on their mutual consent also.
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O.P.(FC) Nos.345, 347 & 348 of 2022
spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child. The child is the victim
in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to custody of the child. The court must therefore be very wary of what is said by each of the spouses.
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have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights. A child has a human right to have the love and affection of both parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents.
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father from 10.15 to 11.45 a.m. We noticed that the children have been comfortable in the company of the father. That would indicate that the father is affectionable to the children, and his interaction will help the children to have a physiological support and develop confidence.
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view of the matter, the directions in Ext.P11 order are quite just and legal.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/P.G. AJITHKUMAR, JUDGE
dkr
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O.P.(FC) Nos.345, 347 & 348 of 2022
APPENDIX OF OP (FC) 345/2022
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA
EXHIBIT P2 A TRUE COPY OF THE INTERIM ORDER DATED 4-9-2019 IN I.A. NO. 980/2019 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA
EXHIBIT P3 A TRUE COPY OF THE AGREEMENT DATED 1111-2019 ENTERED INTO BETWEEN THE PARTIES
EXHIBIT P4 A TRUE COPY OF THE COMMON ORDER DATED 30-7-2020 IN I.A. NO. 1/2020 AND I.A. NO. 3/2020 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA
EXHIBIT P5 A TRUE COPY OF THE I.A. NO. 8/2021 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA
EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. NO. 8/2021
EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 20-122021 IN I.A. NO. 8/2021 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA
EXHIBIT P8 A TRUE COPY OF THE JUDGMENT DATED 163-2022 IN O.P.(FC). NO. 66/2022 ON THE FILES OF THIS HONOURABLE COURT
EXHIBIT P9 A TRUE COPY OF THE I.A. NO. 12/2022 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA
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EXHIBIT P10
A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. NO. 12/2022 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA
EXHIBIT P11
A TRUE COPY OF THE ORDER DATED 25-42022 IN I.A. NO. 12/2022 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA
RESPONDENT EXHIBITS
EXHIBIT R1(A) TRUE COPIES OF THE PHOTOGRAPHS SHOW SOME OF THE HAPPY MOMENETS OF THE CHILDREN WITH THE PETITIONER
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O.P.(FC) Nos.345, 347 & 348 of 2022
APPENDIX OF OP (FC) 347/2022
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE O.P. NO. 651/2021 ON THE FILES OF THE FAMILY COURT, PALA EXHIBIT P2 A TRUE COPY OF THE I.A. 2/2021 IN O.P. NO. 651/2021 ON THE FILES OF THE FAMILY COURT, PALA
EXHIBIT P3 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS IN I.A. NO. 2/2021 IN O.P. NO. 651/2021
EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 25-42022 IN I.A. NO. 2/2021 IN O.P. NO. 651/2021 ON THE FILES OF THE FAMILY COURT, PALA
RESPONDENT EXHIBITS
EXHIBIT R1(A) TRUE COPIES OF THE PHOTOGRAPHS SHOW SOME OF THE HAPPY MOMENETS OF THE CHILDREN WITH THE PETITIONER
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O.P.(FC) Nos.345, 347 & 348 of 2022
APPENDIX OF OP (FC) 348/2022
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE O.P. NO. 480/2019 ON THE FILES OF THE FAMILY COURT, PALA EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 20-122021 IN I.A. NO. 8/2021 IN O.P. NO. 574/2019 ON THE FILES OF THE FAMILY COURT, PALA
EXHIBIT P3
A TRUE COPY OF THE JUDGMENT DATED 163-2022 IN O.P.(FC). NO. 66/2022 ON THE FILES OF THIS HONOURABLE COURT
EXHIBIT P4
A TRUE COPY OF THE I.A. NO. 3/2022 IN O.P. NO. 480/2019 ON THE FILES OF THE FAMILY COURT, PALA
EXHIBIT P5
A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. NO. 3/2022 IN O.P. NO. 480/2019 ON THE FILES OF THE FAMILY COURT, PALA
EXHIBIT P6
A TRUE COPY OF THE ORDER DATED 25-42022 IN I.A. NO. 3/2022 IN O.P. NO. 480/2019 ON THE FILES OF THE FAMILY COURT, PALA
RESPONDENT EXHIBITS
EXHIBIT R1(A)
TRUE COPIES OF THE PHOTOGRAPHS SHOW SOME OF THE HAPPY MOMENETS OF THE CHILDREN WITH THE PETITIONER
3 issues framed by the court
Whether the Family Court can modify a consent order on custody without a change in circumstances given the mother's absence abroad.
What visitation and custody rights are in the best interest of children when one parent is permanently abroad.
Whether the High Court should interfere with the Family Court's impugned order under Article 227.
MINU E. MATHEW
RAKESH JOSE
ANIL K.NARENDRAN
P.G. AJITHKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
