IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY,THE 13TH DAY OF DECEMBER 2018/22ND AGRAHAYANA, 1940
Mat.Appeal.No. 1083 of 2018
AGAINST THE ORDER/JUDGMENT IN GOP 631/2015 of FAMILY COURT,
IRINJALAKUDA DATED 27-02-2017
APPELLANT/RESPONDENT:
DEVI BALAKRISHNAN,
AGED 34 YEARS
D/O THAIPARAMBATH VEETTIL BALAKRISHNAN, THAIPARAMBATH
HOUSE, LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK,
THRISSUR DISTRICT – 680664.
BY ADVS.
SRI.S.RENJITH
SRI.S.UNNIKRISHNAN (NELLAD)
RESPONDENT/PETITIONER:
SREEKUMAR,
AGED 37 YEARS
VALIYA PARAMBIL NEELAMBARAN, VALIYAPARAMBIL HOUSE,
KOTTIKKAL DESOM, AZHIKODE VILLAGE, KODUNGALLUR TALUK,
THRISSUR – 680664.
BY ADV. SRI.G.SREEKUMAR (CHELUR)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.K. ABDUL REHIM
T.V. ANILKUMAR, JJ.
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Mat. Appeal No. 1083 OF 2018
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Dated this the 13th day of December, 2018
JUDGMENT
Abdul Rahim, J.
Challenge in this appeal filed under Section 19 of the
Family Courts Act, 1984 is against the judgment of the Family
Court, Irinjalakuda in G.O.P. No.631/2015. The respondent
herein had approached the Family Court, Irinjalakuda seeking
permanent custody of the minor child of the parties, namely
Rishi.V.S. The Family Court had disposed of the original
petition through the judgment impugned herein, by declaring the
respondent as the natural guardian of the minor child. The
parents of the respondent were allowed to interact with the child
before the court on every last working Saturdays for one hour
from 3 p.m. to 4 p.m. The respondent was allowed to have
company of the child whenever he is available in the native
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place, once in a month from the morning to the evening, under
the special supervision of the court. He was allowed to take the
child on such occasions from 10 a.m. till 4 p.m. Further, he was
permitted to have custody of the child for a period of two days
during Onam, Christmas and Vishu holidays, during day time,
and on every alternative days for one week during any half of
the mid-summer vacation, including night custody on getting
prior permission from the court.
2. The judgment of the Family Court is assailed mainly
on the ground that the respondent who was abroad was missing
and he has absconded willfully. The news was published in all
Dailies in Kerala and it revealed that the respondent is not in a
stable mental status. Hence it is contended that any further
custody of the child to such a person will not be safe. It is
contended that, if over night custody is given to the respondent,
there is every chance that he may abscond along with the child.
3. We notice that the ground for assailing the judgment
Mat. Appeal No. 1083 of 2018
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of the Family Court is mainly based on a subsequent
development and a change of circumstance. Learned counsel
for the appellant pointed out that, the observations contained in
the impugned judgment to the effect that the arrangements
made therein shall continue till the child attains the age of eight
years, may preclude the appellant from approaching the Family
Court again. Therefore he is assailing those findings also.
4. We are of the considered opinion that it remains trite
through various decisions of the apex court that there is no
finality with respect to orders passed under the Guardians and
Wards Act pertaining to custody of minor children. Whenever
there is any substantial change of circumstance, it will be left
open to the parties to approach the appropriate court seeking
modifications regarding the arrangements with respect to
custody of minor children. Therefore, we are of the opinion that
the appellant can be given liberty to approach the Family Court
seeking modifications of the arrangements contained in the
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order impugned herein. Needless to observe that, such
application if any filed need to be considered by the Family
Court on its own merit, after affording opportunity to the other
side.
5. Under the above mentioned circumstances, the
above appeal is hereby dismissed by reserving liberty to the
appellant to approach the Family Court afresh, seeking
modification of the judgment impugned, based on the change of
circumstances, alleged in this appeal. It is clarified that such
application if any filed shall be disposed of by the Family Court,
independently based on its merits.
Sd/- C.K. ABDUL REHIM, JUDGE.
Sd/- T.V. ANILKUMAR, JUDGE, JUDGE.
ul/-
[True copy]
P.S. to Judge.
Mat. Appeal No. 1083 of 2018
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APPENDIX
PETITIONER’S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE NEWS PUBLISHED IN
MALAYALA MANORAMA DAILY DATED 18.5.2018
ANNEXURE A2 TRUE COPY OF THE NEWS PUBLISHED IN
MALAYALA MANORAMA DAILY DATED 21.5.2018