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
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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
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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.