Partly allowed

Radhakrishnan Nair v. Manjula P.M

Kerala HC7 Aug 2023RP/763/2023

Case brief

AI extract

What is this about?

Review petition against interim custody orders fixed inconvenient timings for a father living in Alappuzha regarding his son. The Single Judge found counsel's mistaken impression insufficient for review but modified the custody hour to allow weekend possession from the respondent's residence.

What did the court decide?

Modified clause (iii) allowing petitioner custody from 4.00 p.m. on every second Friday till 7.00 p.m. on ensuing Sunday, to be handed over/returned at respondent's residence.

Radhakrishnan Nair Vs Manjula P.M — Child Custody and Guardianship | Kerala HC (2023)

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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 MONDAY, THE 7^TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945

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R.P. NO. 763 OF 2023

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AGAINST THE JUDGMENT DATED 04.04.2023 IN MAT.APPEAL NO.738 OF 2018 OF THE HIGH COURT OF KERALA

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REVIEW PETITIONER/APPELLANT/PETITIONER:

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RADHAKRISHNAN NAIR

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AGED 55 YEARS, S/O PARAMESHWARAN NAIR, PUTHENVEEDU, SREEKANDAMANGALAM, MUTTATHIPARAMBU P.O., CHERTHALA, ALAPPUZHA DISTRICT, PIN – 688527.

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BY ADVS. S.RENJITH P.K.SREEVALSAKRISHNAN S.UNNIKRISHNAN (NELLAD) K.R.PRATHISH JOEL CHALAMANA

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RESPONDENT/RESPONDENT/RESPONDENT:

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MANJULA P.M.,

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AGED 46 YEARS, D/O GOPALAKRISHNAN, KRISHNAKRIPA HOUSE, VENGERI P.O., KOZHIKODE DISTRICT, PIN – 678010.

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BY ADV P.V.ANOOP

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.P.No.763 of 2023 in Mat.Appeal No.738 of 2018

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O R D E R

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P.G. Ajithkumar, J.

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The petitioner is the appellant in Mat.Appeal No.738 of 2018. He seeks to review the judgment dated 04.04.2023 by which the Mat.Appeal was disposed of. He has filed this petition under Section 114 read with Order XLVII, Rule 1 of the Code of Civil Procedure, 1908.

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There was a delay of 75 days in filing the Review Petition, which was condoned by allowing C.M.Appl.No.1 of 2023.

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Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

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The petitioner has filed O.P.No.37 of 2017 before the Family Court, Kozhikode claiming permanent custody of his 12 year old son. The respondent is the mother. The claim of the petitioner for permanent custody of the child was declined, but the Family Court as per the judgment

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R.P.No.763 of 2023 in Mat.Appeal No.738 of 2018

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dated 25.05.2018 allowed him to have visitation right. He was allowed to interact with the child from 11.00 a.m till 4.50 p.m. on every third Saturday.

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In the Mat.Appeal, he challenged the said judgment and the decree. He filed I.A.No.1 of 2023 seeking interim custody of the child during the midsummer vacation. Both the appeal and the interlocutory application

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were disposed of on 04.04.2023 ordering as follows:-

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“12. Accordingly, this appeal is disposed of as follows: i ) The respondent shall have permanent custody of the child;

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ii ) The appellant shall be given periodical custody, namely, half of the holidays during Onam and Christmas and midsummer vacation;

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iii) The appellant shall also be given custody of the child on every second Saturday and Sunday. The custody shall be given at 10.00 a.m. and returned at 4.00 p.m. of the first and last day respectively of each spell;

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iv) Such custody shall be given and taken back from the premises of the Family Court, Kozhikode; and

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v ) The appellant/respondent shall be allowed to make audio/video call between 7.00 and 7.30

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R.P.No.763 of 2023 in Mat.Appeal No.738 of 2018

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p.m. on every alternate day while the child is in the custody of the other parent.

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I.A.No.1 of 2023 in Mat.Appeal No.738 of 2018

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During this vacation, custody of the child shall be given to the petitioner/appellant from 08.04.2023 till 07.05.2023. I.A.No.1 of 2023 is ordered accordingly.”

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The grounds for review are that the petitioner

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was not given sufficient opportunity to make his submissions, and he was under the impression that I.A.No.1 of 2023 alone was being considered while the matter was heard on 04.04.2023. The petitioner further would contend that clause No.(iii), which governs interim custody of the child on second Saturdays and Sundays causes much difficulty and inconvenience to the petitioner inasmuch as he has to travel from Alappuzha where he resides, to Kozhikode from where he has to get custody of the child on consecutive days along with the child.

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The appeal and I.A.No.1 of 2023 were heard and disposed of on 04.04.2023, after hearing the learned counsel on both sides. The mistaken impression of the

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R.P.No.763 of 2023 in Mat.Appeal No.738 of 2018

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counsel of the petitioner, in the above circumstances, cannot be a reason for review.

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Having heard the learned counsel on either side, we are of the view that the timings for interim custody of the child on Saturdays and Sundays would cause inconvenience to the petitioner as well as the child. Considering the distance between Alappuzha and Kozhikode modification of the said direction is required, particularly to safeguard the interest of the child. The respondent is not averse fpr making such a modification also.

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Accordingly, this Review Petition is disposed of and clause (iii) in the operative part of the judgment dated 04.04.2023 in the Mat.Appeal is modified by directing that the petitioner/appellant shall be given custody of the child from 4.00 p.m. on every second Friday till 7.00 p.m. on the ensuing Sunday. The petitioner can get and return custody of the child from the residence of the respondent. Handing over and return of custody of the child in compliance to

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R.P.No.763 of 2023 in Mat.Appeal No.738 of 2018

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other clauses in the judgment shall be from the premises of the Family Court, Kozhikode.

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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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dkr

Radhakrishnan Nair v. Manjula P.M

Case brief

What is this about?

What did the court decide?

Radhakrishnan Nair v. Manjula P.M

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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