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Judgments of Supreme Court of India and High Courts

Against The Order Dated … vs By Advs on 8 April, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE K.HARILAL

THE HONOURABLE MRS. JUSTICE ANNIE JOHN

MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941

OP (FC).No. 215 of 2019

AGAINST THE ORDER DATED 27.03.2019 BY THE FAMILY COURT,
THIRUVALLA IN I.A.NO.224/2019 IN OP (GW) NO.401/2018

PETITIONER (RESPONDENT IN I.A.NO.224/2019 AND PETITIONER
IN O.P.(GW) NO.401/2018) :

SHARON MANALOOR,
AGED 34 YEARS,
D/O. REVI MANALOOR, MANALOOR HOUSE,
CHIRAYIRAMBU P.O.,
MARAMON, PATHANAMTHITTA DISTRICT

BY ADVS.
SRI.V.PHILIP MATHEW
SRI.GIBI.C.GEORGE

RESPONDENT (PETITIONER IN I.A.NO.224/2019 AND RESPONDENT
IN O.P.(GW) NO.401/2018) :

VARUGHESE MATHEW, AGED 39 YEARS,
S/O. M.V.MATHEW, 5/377,
TOP HILL TEA FACTORY, AMMAN NAGAR,
KIL-KOTTAGIRI BAZAR P.O., NILGRIS,
TAMILNADU – 643 271
REPRESENTED BY HIS FATHER/ POWER OF ATTORNEY
HOLDER MR. MATHEW, 5/377,
TOP HILL TEA FACTORY, AMMAN NAGAR,
KIL – KOTTAGIRI BAZAR P.O., NILGRIS,
TAMILNADU – 643 271

BY ADV. SRI.JOSEPH GEORGE

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
08.04.2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
OP (FC).No. 215 of 2019

2

JUDGMENT

Annie John, J.

Petitioner is the wife of the respondent. A

female child was born to them on 18.07.2011. The

marital relationship between the petitioner and the

respondent have broken down. The respondent is in

Kuwait. His parents are in Nilgris, Tamilnadu.

2. This Court by a common judgment dated

20.02.2019 in OP (FC) Nos. 4 and 22 of 2019, based on

the agreement of parties ordered that the custody of the

minor child would be given to the respondent for 20 days

in the first half of mid-summer vacation. By judgment

dated 20.02.2019, this Court directed the Family Court to

reconsider IA.No.1195/2018 filed for permission to take
OP (FC).No. 215 of 2019

3

the child to Kuwait for renewing her residence permit.

That IA has been heard again and dismissed on

27.03.2019 by the Family Court, Thiruvalla. The

respondent filed IA.No.224/2019 for a direction to

produce the child’s passport. There is no prayer to

permit child to be taken abroad. The Family Court has

now permitted the child to be taken to Kuwait. Highly

aggrieved by the order dated 27.03.2019 by the Family

Court, Thiruvalla, this OP(FC) has been filed.

3. This OP is filed by the mother of the above

said minor child for declaring her guardianship under

Section 7 of the Guardian and Ward Act and also for an

injunction restraining the respondent from taking away the

minor child forcibly from the custody of the petitioner.

The respondent was working in Kuwait. The petitioner was
OP (FC).No. 215 of 2019

4

also working there and they were residing together along

with the minor child in Kuwait. The child was studying in

the school by name ‘Light Academy’ in Kuwait. In the

month of August 2018, the petitioner left the company of

the respondent and returned here after cancelling the

visa. Before that, the child was brought to here in school

vacation. After the petitioner reached here, she filed this

OP and OP (DIV) No.402/2018 for dissolution of the

marriage on the ground of cruelty. Now, she is working in

a company by name ‘Team Lease Private Ltd., Bangalore’.

The child is also with her in Bangalore and she is studying

there. In this context, the respondent father filed

IA.No.1195/2018 and IA.No.938/2018 under Section 12

(1) of Guardian and Ward Act for getting interim custody

of the child. Both IAs were heard together by the court
OP (FC).No. 215 of 2019

5

below and passed common order on 27.12.2018. As per

the above said order, the interim custody of the child was

given to the petitioner/ mother subject to the

respondent’s visitation right and custody during vacation.

The respondent/ father challenged this order before this

Court in OP (FC) No.4/2019. This Court, after hearing

both sides, confined the order of the court below by

giving the child to the custody of the petitioner/ mother.

However the order regarding the respondent’s visitation

right, custody during vacation etc., is modified. Since the

court below has not mentioned any reason for dismissing

IA.No.1590/2018, the request made by the respondent/

father in that IA for taking the child to Kuwait for renewal

of existing visa is turned down by the court below without

applying the mind. Therefore, the order passed in
OP (FC).No. 215 of 2019

6

IA.No.1195/2018 was set aside and directed the court

below to dispose of this IA after conducting fresh enquiry

and hearing both sides. In the meanwhile, the respondent

has filed IA.No.224/2019 for giving a direction to the

petitioner/ mother to produce the child along with her

passport before the court for the purpose of taking her to

Kuwait. The petitioner/ mother filed objection to

IA.No.224/2019 contending that this Court has modified

the order of the court below as agreed by both parties,

that the respondent has not raised any demand before

this Court for taking the child to Kuwait and no sanction

has been granted by this Court for taking the child to

Kuwait that the custody is given to the respondent for the

visit of the respondent’s house and his relatives in Kerala

and that the respondent alone is residing in Kuwait and in
OP (FC).No. 215 of 2019

7

the absence of any helper, taking the minor to Kuwait is

not safe.

4. After hearing both sides, the lower court has

dismissed IA.No.1195/2018 and allowed IA.No.224/2019

and the respondent is allowed to take the minor child

along with him to Kuwait during summer vacation as

ordered by lower court on condition that she should be

accompanied by her paternal grandmother and the

petitioner was directed to produce the child along with

her passport before the court below as soon as the

school closed for summer vacation. Another direction

was given to the respondent to produce the visa and air

ticket of the child and her paternal grandmother before

the court below and as soon as such visa and air ticket

are produced, the passport of the minor child shall be
OP (FC).No. 215 of 2019

8

released to him. There was a further direction to the

respondent that he shall appear in person for receiving

the child from the custody of the petitioner and he is

directed to produce the child before the court on expiry of

twenty days.

5. The learned counsel for the petitioner has

vehemently argued that if the child is taken to Kuwait, the

respondent will never return her to India. Further, the

respondent has so many relatives settled in Canada and

there is every possibility of taking the child to Canada.

So the petitioner apprehends that the child will not be

returned by the respondent. In fact, we have gone

through the order of the court below. The learned

counsel for the petitioner further submitted before the

court below that sending the minor daughter, aged 7
OP (FC).No. 215 of 2019

9

years, along with her father to Kuwait in the absence of

mother is not safe. Further, she submitted that he will go

for his job leaving the child alone in the flat and at that

time, the child has no protection in her residence.

Further, she submitted that the petitioner mother has no

objection in taking the child to Kuwait if she is

accompanied by the mother of the respondent. The

court below reiterated the order dated 27.12.2018 wherein

it has stated that admittedly, the respondent is living

lonely in his flat at Kuwait. There is no near relatives

along with him. In this situation, if the child is allowed to

live along with him at Kuwait, there is no assurance to her

safety. The respondent has admitted that he is residing

alone in the flat after the petitioner left his company.

Under these circumstances, the court below had taken a
OP (FC).No. 215 of 2019

10

view that sending the child along with the father without

the assistance of a servant will cause much inconvenient

and hardship to her.

6. In such circumstances, the court below held

that the interest of the petitioner and the respondent can

be protected by allowing the proposal made by the

learned counsel for the petitioner to send the

respondent’s mother along with the minor child to Kuwait.

So, the respondent’s mother is also allowed to

accompany the child stating that it will be more

convenient to the respondent as well as the minor child.

Accordingly, the court below has allowed the

respondent’s prayer to take the child along with him to

Kuwait during vacation on condition that the minor child

should be accompanied by her paternal grandmother.
OP (FC).No. 215 of 2019

11

7. From the order of the court below, it is quite

clear that there was a consent on the part of the

petitioner, permitting the respondent to take the child to

Kuwait. Immediately after the order, she surrendered the

child as well as the passport to the respondent. So that

would indicate that the petitioner has given consent to

the respondent to take the child to Kuwait for sometimes.

8. At the time of argument, the learned

counsel for the respondent submitted that he is ready to

give back the child on 20.04.2019 when the case was

posted for further hearing. Accordingly, we are having a

considered opinion that the court below has passed the

order on the basis of the consent of the petitioner. So, no

interference is warranted in this case.
OP (FC).No. 215 of 2019

12

In the result, this OP is dismissed. Further, the

respondent is directed to produce the child on 20.04.2019

before the Family Court, Thiruvalla.

Sd/-

K.HARILAL, JUDGE

Sd/-

ANNIE JOHN,JUDGE

RKM
OP (FC).No. 215 of 2019

13

APPENDIX

PETITIONER’S EXHIBITS :

P1 : COPY OF O.P.(GW) NO.401/2018 FILED BY THE PETITIONER
BEFORE THE fAMILY COURT, THIRUVALLA

P2 : COPY OF I.A.NO.1195/2018 FILED BY THE RESPONDENT IN
O.P.(GW) NO.401/2018.

P3 : COPY OF COMMON JUDGMENT DATED 20.02.2019 PASSED BY
THIS COURT IN O.P.(FC) NO.4/2018 AND O.P.(FC)
NO.22/2019.

P4 : COPY OF COMMON JUDGMENT DATED 20.02.2019 PASSED BY
THIS COURT IN O.P.(FC) NO.4/2018 AND O.P.(FC)
NO.22/2019.

P5 : COPY OF COMMON ORDER DATED 27.03.2019 PASSED BY THE
FAMILY COURT, THIRUVALLA IN I.A.NO.1195/2018 AND IN
I.A.NO.224/2019 IN O.P.(GW) NO.401/2018.

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