Dismissed

Dhanya v. Leela

Kerala HC17 Nov 2022RP/36/2020

Case brief

AI extract

What is this about?

In this review petition challenging an interim custody order regarding a child, the Court dismissed the review. It held that modification of custody conditions due to circumstances like non-maintenance requires a new application to the Family Court, not a review. The Court directed the Family Court to conclude the original petition within three months after ascertaining the child's wishes.

What did the court decide?

The review petition was dismissed. Leave was granted to the petitioner to convince the Family Court for modification, with a direction to dispose of the original petition within three months after asc

Dhanya Vs Leela — Child Custody and Guardianship | Kerala HC (2022)

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 17^TH DAY OF NOVEMBER 2022 / 26TH KARTHIKA,

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1944

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RP NO.36 OF 2020

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AGAINST THE JUDGMENT DATED 30.09.2019 IN OP(FC)NO.363 OF 2019 ON THE FILE OF HIGH COURT OF KERALA REVIEW PETITIONER/RESPONDENT:

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DHANYA

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AGED 32 YEARS D/O.PUSHPARAJAN, RAMANEEYAM, KORADIYANVILAKOM, VAKKOM.P.O., CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM-695308.

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BY ADVS. V.S.LIJA SMT.BEENA S. NAIR

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RESPONDENT/ORIGINAL PETITIONER:

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LEELA,

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AGED 64 YEARS, W/O.BHASI, OMKARAM, VAKKOM.P.O., CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM-695308.

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.P.No.36 of 2020 in O.P.(FC) No.363 of 2019

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J U D G M E N T

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P.G.Ajithkumar, J

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O.P(FC)No.363 of 2019 was filed by the petitioner in I.A.No.1051 of 2019 in O.P.No.468 of 2019 on the files of the Family Court, Attingal. That I.A.was filed seeking interim custody of the child. After considering the rival contentions, the petitioner therein, who is the paternal grandmother was allowed to have interim custody of the child on second Saturdays and Sundays every month. As per the judgment dated 30.09.2019, the said order was set aside. The petitioner seeks to review the said judgment for which she has filed this petition under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908.

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Though notice was given to the respondent, she did not choose to appear before this Court.

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Heard the learned counsel appearing for the petitioner.

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Paragraph No.3 and operative part of the judgment dated 30.09.2019 read as follows:

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“Going by Clause 5 of Ext.P1, we find that as rightly

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R.P.No.36 of 2020 in O.P.(FC) No.363 of 2019

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submitted by the learned counsel for the petitioner, the petitioner is given interim custody of the child on 2^nd Saturday and last Saturday of every month from 10.00 a.m. till 5.00 p.m. on the next Sundays and thereafter the child shall be returned to his mother, the respondent herein. Both parties further agreed that the custody of the child during the summer vacation, festival seasons, Onam, Christmas and Diwali shall be with both parties sharing the total holidays equally. The present original petition has been filed in view of subsequent events after Ext.P1. But we are of the opinion that unless a fresh order is passed in the present OP, in view of subsequent events occurred after Ext.P1, the respondent is liable to obey the terms of Ext.P1.

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Therefore, we set aside the impugned order and the petitioner is given interim custody as per the terms of Clause 5 of Ext.P1. It is needless to say, the subsequent events can be considered while passing the final order in the present original petition, pending before the Family Court. The venue of exchange of the child shall be the Family Court, Attingal.

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This OP (FC) is allowed as above.”

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The contention of the petitioner is that when

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custody is given to the respondent in terms of Ext.P1 compromise, it often caused emotional stress to the child. It is also contended that the father of the child did not bother to

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R.P.No.36 of 2020 in O.P.(FC) No.363 of 2019

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pay any amount towards maintenance of the child although he is bound to make payments as per the terms in Ext.P1. Therefore the father or the grandparents of the child cannot avail the benefit under Ext.P1.

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This Court held in the judgment dated 30.09.2009 that as long as Ext.P1 remains binding the parties, the petitioner cannot contend that the custody in terms of the conditions in it should not be given to the respondent. The law is that orders regarding custody of a child even if it is based on the consent by the parties, is temporary in nature and liable to be altered or modified if the circumstances require so. That does not mean that the petitioner can by way of a review seek to change the conditions regarding the custody of the child in Ext.P1. The petitioner produced Annexures A2 and A3 to substantiate her contention that there occurs emotional disturbances to the child when he is given in custody of the respondent. We do not propose to consider the opinion stated in Annexure A2 and A3 in this review petition since the same would not come within the purview of review jurisdiction. If there is any change in the circumstances, it is always possible

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R.P.No.36 of 2020 in O.P.(FC) No.363 of 2019

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for the petitioner to convince the Family Court, Attingal and seek modifications to the stipulations in Ext.P1 regarding custody of the child.

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In the said circumstances, this review petition is dismissed, however, directing the Family Court, Attingal to dispose of O.P.(G&W) No.468 of 2019 within a period of three months from the date of production of certified copy of this judgment. The Judge, Family Court shall interact with the child in order to ascertain his wishes before taking final decision in O.P.(G&W) No.468 of 2019.

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Sd/-

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ANIL K.NARENDRAN JUDGE

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Sd/-

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P.G. AJITHKUMAR JUDGE

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R.P.No.36 of 2020 in O.P.(FC) No.363 of 2019

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APPENDIX OF R.P NO.36 OF 2020

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PETITIONER'S ANNEXURES

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ANNEXURE I TRUE COPY OF SETTLEMENT DEED NO.122/2019 OF SUB REGISTRAR OFFICE,KADAKKAVOOR.

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ANNEXURE II TRUE COPY OF THE CERTIFICATE ISSUED FROM THE CHRIST NAGAR PUBLIC SCHOOL.

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ANNEXURE III TRUE COPY OF THE REPORT OF DR.MOHANRAJ.

Dhanya v. Leela

Case brief

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What did the court decide?

Dhanya v. Leela

Case brief

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