IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 Mat.Appeal.No. 856 of 2009(B) ----------------------------- GOP.721/2007 of FAMILY COURT,ERNAKULAM .................... APPELLANT:RESPONDENT: ------------------------------------------ JEEJA GEORGE, D/O.GEORGE, AGED 39, KAITHAVANA, KUROORKARA, NEAR ROTARY BHAVAN, KOTHAMANGALAM, ERNAKULAM,REP. BY FATHER AND POWER OF ATTORNEY HOLDER GEORGE THOMAS,..DO. BY ADVS. SRI.SUBAL J.PAUL, SRI.SHEEBA THOMAS. RESPONDENT(S): PETITIONER IN OP: --------------------------------------------------------- DR. CHERIAN, S/O.K.P.ABRAHAM, AGED 50, KUNNATHU PUTHENPURA, PAIMATTOM VADAKARA KOOTHATTUKULAM. BY ADV. SRI S.RAJEEV - CAVEATOR BY ADV. SRI.ANIL K.NARENDRAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2011 ALONG WITH MA.NO.849 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss R.BASANT & K.SURENDRA MOHAN, JJ. *********************** Mat.Appeals No.856 of 2009-B and No.953 of 2009-E ***************************** Dated this the 22nd day of June, 2011 JUDGMENT BASANT, J. These appeals are preferred by the father and mother of a male child, who has completed 5 years, aggrieved by the directions issued by the Family Court about the custody of the child in a common judgment passed by this Court. Challenge about another part of the impugned common judgment is being disposed of by a separate judgment in Mat.Appeal No.953 of 2009. The learned Judge of the Family Court by the impugned order had issued the following directions regarding the custody of the child. i) Custody of the minor child Joshua Cherian will be with the mother; ii) The father is entitled to the custody of the minor child for three weeks during annual vacation every year; iii) The father is permitted to have conversation with the minor child twice in a week, ie. on all Sundays and Wednesdays as also on the eve of Christmas and the birthday of the child Mat.Appeals No.856 of 2009-B and No.953 of 2009-E 2 every year from 7 p.m to 8 p.m till the child attains the age of 7 years; iv) At least two weeks prior to the date of commencement of the vacation, the mother is to inform the father in writing of the date of commencement of the annual vacation. The custody of the child shall be handed over by the mother to the father in the Family court premises and the child shall be returned back to the mother at the same place. 2. Both the father and the mother claim to be aggrieved by the impugned order. Counsel were requested to explain the precise nature of their grievance. The learned counsel for the appellant/father submits that the appellant/father is aggrieved by the fact that permanent custody has not been handed over to the father of the child. That is his short grievance. So far as the appellant/mother is concerned, the counsel contends that she is also aggrieved in that, no specific stipulation has been made about the expenses for air fare of the child to travel from Malaysia, where the mother and the child now are. It is prayed that appropriate directions may be issued so that the father will be obliged to meet the expenses of the child as also one person Mat.Appeals No.856 of 2009-B and No.953 of 2009-E 3 who accompanies the child up and down. It is further prayed that it may be made clear that the arrangement stipulated shall continue till the child attains the age of 9 years and the parties can seek modification if necessary only thereafter. It is further prayed that it may be made clear that the arrangement stipulated shall continue till the child attains the age of 9 years and the parties can seek modifications if necessary only thereafter. 3. No other grievance is raised by either the father or the mother. 4. We note that the child has completed 5 years now. We have had occasion to interact with the child. The child has been in the custody of the mother for a ly long period of time. Notwithstanding the acrimony between the spouses, we note that the child has been brought up in such a manner that he readily goes to his father. We are happy that the child has been well groomed and moulded and that is evident from the fact that he is not making any attempt to resist his being handed over to the custody of his father. Even on the latest occasion, we find that even though the child was meeting his father after a long Mat.Appeals No.856 of 2009-B and No.953 of 2009-E 4 gap of time, he had gone to his father very easily and we must certainly appreciate the manner in which the child has been brought up by his mother. We have no hesitation to agree with the Family Court that the custody of the 5 year old child is best left to the mother at this juncture. The court below had directed that the arrangement should continue till the child attains the age of 7 years. We are persuaded to agree that such arrangement can continue till the child attains the age of 9 years. Any change regarding the directions regarding custody if found necessary can be sought after the child completes the age of 9 years. We do hope that by then, the child will be able to give an informed response to the court trying to ascertain the best interests of the child. In these circumstances, we find no merit in the challenge raised by the appellant/husband against the impugned order. 5. Coming to the grievance raised by the mother about the payment of air fare for the child, we do agree that the father who wants to have interactions with the child must be obliged to pay the air fare of the child. Though there is a request made that the father may be compelled to pay air fare of a person who Mat.Appeals No.856 of 2009-B and No.953 of 2009-E 5 accompanies the child, we are of the opinion that no such specific direction need be issued. It is sufficient, we are satisfied, if the father is made liable to pay the air fare up and down of the child. Such payment shall be made on the date when the child is produced before the Family Court every year. 6. We are satisfied that the impugned order passed by the Family Court regarding the custody of the child can be upheld subject to the above modifications. The child has been handed over to the father by the mother on 13.06.2011. The child shall be returned to the mother on 01.07.2011. The mother shall be liable to hand over custody of the child only during the annual vacation in June, 2012. 7. These appeals are, in these circumstances, allowed in part to the above extent. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/