This PIL under Article 226 challenged a Family Court order permitting a child's relocation to Germany. The High Court, prioritizing the 14-year-old girl's welfare and willingness to stay with her mother, dismissed the pet
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 1 S T DAY OF NOVEMBER 2022/10TH KARTHIKA, 1944 O.P.(FC) NO. 426 OF 2022
AGAINST THE ORDER DATED 04.07.2022 IN I.A.NO.8 OF 2022 IN O.P.NO.186 OF 2022 OF THE FAMILY COURT, THRISSUR
PETITIONER:
DILEEP MARATH VASUDEVAN, AGED 49 YEARS, S/O.M.R.VASUDEVAN, MARATH HOUSE, EDAMUTTAM P.O., THRISSUR, PIN - 680 568, NOW RESIDING AT : ANOTECH ENERGIES, SINGAPORE, 160, ROBINSON ROAD, 21-04 SBF CENTRE, SINGAPORE - 068914 REPRESENTED BY POWER OF ATTORNEY MARATH PRATHEEP, AGED 55 YEARS, S/O.VASUDEVAN M.R., MARATH HOUSE, P.O. EDAMUTTAM, VALAPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR, PIN – 680568.
BY ADVS. S.SREEKUMAR (SR.) THOMAS P.KURUVILLA P.MARTIN JOSE P.PRIJITH MANJUNATH MENON R.GITHESH HARIKRISHNAN S.
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RESPONDENT:
BINDU KALAVAMBARA ARAVIND, AGED 43 YEARS, D/O.ARAVINDAKSHAN, REPUBLIC ROAD, NORTH PARAVUR POST, ERNAKULAM - 683 513, NOW RESIDING AT SANTHITHEERAM, CHETTUPUZHA POST, PULLAZHY VILLAGE, KANNAPURAM, THRISSUR TALUK, PIN – 680012.
BY ADVS. HASEENA KUNJOONJU RAJIT V.V.JOY
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 17.10.2022, THE COURT ON 01.11.2022 DELIVERED THE FOLLOWING:
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JUDGMENT
Ajithkumar, J.
The petitioner is the respondent in O.P.No.186 of 2022 on the file of the Family Court, Thrissur. The respondent filed the said O.P. for the custody of the minor daughter, aged 14 years. She had also filed I.A.No.8 of 2022 in that O.P. seeking permission of the court to take the minor child along with her to Germany. As per the order dated 04.07.2022 I.A.No.8 of 2022 was allowed. Ext.P8 is the order. The petitioner challenges Ext.P8 in this Original Petition filed under Article 227 of the Constitution of India.
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Court directed both parties to appear before this Court on 10.10.2022 online. In terms of the said order, both of them appeared on that date. Considering the nature of issues involved, we decided to have the proceedings in-camera and the parties were directed to appear online at 4.30 p.m. on 17.10.2022. Both of them and the child appeared accordingly and the proceedings on 17.10.2022 was conducted in-camera.
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to Germany. It is stated in the affidavit filed in support of the petition that the petitioner was compelled to leave for Germany owing to the pressure of the situation, especially that the period of her Visa would have expired on 31.08.2022. She has produced Ext.R1(t) in order to substantiate that in order for getting extended permission for her stay in Germany, she had to rush to Germany. It is also contended that the child, who is a bright student, had to be enrolled in the school in Germany for which she had to rush abroad.
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3 SCC 67] the Apex Court held that law is well settled by a catena of judgments that, while deciding matters of custody of a child, primary and paramount consideration is the welfare of the child. If the welfare of the child so demands then
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technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one 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.
down in Nithya Anand Raghawan v. State (NCT of Delhi)
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& another [(2017) 8 SCC 454] explained the parameters to be reckoned with while deciding the question of interim custody in a case where there occurs change in the place of residence of children.
The petitioner is now in Singapore and the child is in Germany. Taking into account all such aspects and the submissions of the counsel on either side, we are of the view that no interference with the impugned order is required.
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permission, but she did not. That act is certainly disobedience of the order dated 26.07.2022. She is reminded that she is subject to the jurisdiction of this Court, wherever she is. We strongly deprecate the conduct of disobeying the order. However, considering the future and interest of the minor, we refrain from initiating action against the respondent for such disobedience.
The Original Petition is accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
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APPENDIX OF OP (FC) 426/2022
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF O.P.NO.1896 OF 2019 FILED BEFORE THE FAMILY COURT, THRISSUR DATED 27-09-2019
EXHIBIT P2
TRUE COPY OF ORDER DATED 14-10-2019 IN O.P.NO.1896 OF 2019 OF FAMILY COURT, THRISSUR
EXHIBIT P3 TRUE COPY OF G.O.P.NO.186 OF 2022 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THRISSUR ON 21-01-2022
EXHIBIT P4
TRUE COPY OF O.P.NO.1282 OF 2022 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, THRISSUR
EXHIBIT P5 TRUE COPY OF FIR IN CRIME NO.427 OF 2022 OF THRISSUR WEST POLICE STATION DATED 23-4-2022
EXHIBIT P6 TRUE COPY OF I.A.NO.8 OF 2022 IN G.O.P.NO.186 OF 2022 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THRISSUR
EXHIBIT P7 TRUE COPY OF OBJECTION FILED BY THE PETITIONER TO EXHIBIT.P6
EXHIBIT P8
TRUE COPY OF ORDER IN I.A.NO.8 OF 2022 IN O.P.NO.186 OF 2022 DATED 04-07-2022
RESPONDENT EXHIBITS
EXHIBIT-R1(A) TRUE COPY OF THE DEED OF WILL DATED 15/7/2022 NO.134/III/2020 OF SRO AYYANTHOLE.
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EXHIBIT-R1(B) TRUE COPY OF THE BACHELOR DEGREE CERTIFICATE DATED 29/11/2001.
EXHIBIT-R1(C) TRUE COPY OF THE CERTIFICATE OF MASTER DEGREE IN BUSINESS ADMINISTRATION MARKETING AND SYSTEMS FROM BANGALORE UNIVERSITY, DATED 2/8/2005.
EXHIBIT-R1(D) TRUE COPY OF THE EXPERIENCE CERTIFICATE AND RESUME
EXHIBIT-R1(E) TRUE COPY OF THE UNIVERSITY STUDENT CONTRACT OF UNIVERSITY OF EUROPE BERLIN CAMPUS GERMANY
EXHIBIT-R1(F) TRUE COPY OF THE CONFIRMATION OF PAYMENT DATED 15.3.2022.
EXHIBIT-R1(G) TRUE COPY OF THE ACCOMMODATION SUPPORT LETTER DATED 3.12.2021.
EXHIBIT-R1(H) TRUE COPY OF THE MANDATORY PHYSICAL PRESENCE TO JOIN ON CAMPUS COURSES DATED 2.12.2021.
EXHIBIT-R1(I) TRUE COPY OF THE EMAIL RECEIVED FROM DEUTSCH IN BERLIN (LANGUAGE CERTIFICATE) DATED 11.7.2022
EXHIBIT-R1(J) TRUE COPY OF THE APPOINTMENT LETTER OF THE CONSULATE GENERAL OF THE FEDERAL REPUBLIC OF GERMANY AT BANGALORE DATED 10/2/2022.
EXHIBIT-R1(K) TRUE COPY OF THE TRAVEL GUARD POLICY DATED 1/2/2022.
EXHIBIT-R1(L)
TRUE COPY OF THE SCHOOL DETAILS OF THE MINOR CHILD.
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EXHIBIT-R1(M) TRUE COPY OF THE VISA OF GERMAN FEDERAL REPUBLIC ALLOWED TO THE RESPONDENT. EXHIBIT-R1(N) TRUE COPY OF THE CHECK LIST FOR GERMAN NATIONAL VISA FOR MINOR DATED 30.11.2021. EXHIBIT-R1(O) TRUE COPY OF THE F.I.R. 427/2022 UNDER POCSO ACT AGAINST PETITIONER.
3 issues framed by the court
Whether the High Court should interfere with the Family Court order allowing the child's removal from India to Germany.
Whether the respondent's alleged disobedience of the stay order warrants interference given the child's welfare and maturity.
Whether a matured 14-year-old child's wish to reside with the mother in Germany overrides the father's claim for interaction.
Colour shows how this judgement treated each authority
Yashita Sahu v. State of RajasthanExplained¶39
Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 67] · Who else cites this
Rohith Thammana Gowda v. State of KarnatakaExplained¶45
Rohith Thammana Gowda v. State of Karnataka & others [(2022) SCC Online SC 937] · Who else cites this
Nithya Anand Raghawan v. StateExplained¶46
Nithya Anand Raghawan v. State (NCT of Delhi) & another [(2017) 8 SCC 454] · Who else cites this
Dileep Marath Vasudevan
Bindu Kalavambarar Aravind
Anil K. Narendran
P.G. Ajithkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
