IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Mat.Appeal.No. 356 of 2005() ---------------------------- OP.188/2003 of FAMILY COURT,KOZHIKODE .................... PETITIONER(S): APPELLANT ------------------------ P.MEERA, AGED 40 YEARS, D/O.P.DAMODARAN, RESIDING AT QTR NO.CE-35, QUARTERS OF CENTRAL EXCISE AND CUSTOMS, KOZHIKODE. BY ADV. SRI.P.M.MOHAMMED SHIRAZ RESPONDENT(S): --------------- T.VELAYUDHAN, AGED 45 YEARS, S/O.KUNJHIKANNAN, RESIDING AT KUNIYIL, MELOOR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. ADV. SRI.N.M.MADHU FOR R1 PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * Mat.A.No.356 of 2005 ---------------------------------------- Dated this the 23rd day of May 2009 J U D G M E N T BASANT,J This appeal is preferred by the respondent/mother in an application for custody. The court below turned down the prayer of the respondent/father for custody and permitted the mother to keep custody of her two children, a boy aged 14 years and a girl aged 13 years now. There is an acrimony in the matrimony and an application for divorce has been filed by the father, the respondent herein. That application was allowed on the ground of cruelty. Against that also, another appeal Mat.A.No.34/05 was filed. 2. During the pendency of these appeals, the parties have settled their disputes. They have agreed that the marriage can be dissolved by mutual consent under Section 13B of the Hindu Marriage Act and accordingly Mat.A.No.340/05 has already been allowed. The divorce has taken place; but the parties have not been able to settle their disputes regarding the custody of the children. Mat.A.No.356/05 2 3. What is the dispute? Though the respondent/father's application for custody has been dismissed, he was granted visitation rights. The appellant/mother is aggrieved by the visitation rights granted in favour of the father. Father has not challenged the order and the only bone of contention is the acceptability of the visitation rights granted to the father in the impugned order. By the impugned order, the respondent/father has been permitted to take both children from the school on all Fridays, prior to the 2nd Saturdays and to leave the children at the school on the morning of the succeeding Mondays of every month. The appellant/mother claims to be aggrieved by this direction. The learned counsel for the appellant submits that the children are unwilling to go with the father. The reasons urged are that the girl child has no privacy in the father's house and the male child is not comfortable there. The father is an atheist whereas the son aged 14 years is a religious person. He is not permitted to go to the temple, it is submitted. Further, it is submitted that the children are not permitted to use the telephone and contact the mother and others when they are with the father. The father denies all these allegations. Mat.A.No.356/05 3 4. We find no merit in these grievances. The children are with the father only for two days in a month and these alleged reasons to justify the reluctance of the children to be with their father do not at all impress us. We are satisfied that the Family Court committed no error in granting the father an opportunity to have company of the children between Friday and Monday once a month. The learned counsel for the appellant then submits that there is genuine difficulty experienced by the children inasmuch as they are taken from the school on Friday and left back at the school on Monday morning. This upsets their schedule. When they leave the house on Friday, they have to take the clothes, books etc for the school on Monday next. Reasonable modification of the order may be made, urges the learned counsel for the appellant. 5. We find the said request to be absolutely reasonable. The learned counsel suggests that the children can be taken from the school; but they may be directed to be left at the house of the mother before 6 p.m on the succeeding Sunday. That request can be accepted and the impugned order can be modified to that extent only. 6. There is a contention that there was an agreement and the father had agreed to pay the educational expenses of the Mat.A.No.356/05 4 children. Admittedly, the father is continuing to do the same. But, that part of the agreement has not been incorporated in the impugned order, it is submitted. The learned counsel for the respondent/father submits that he needs no order of the court to discharge his obligation to pay the educational expenses of the children. He is admittedly discharging that liability. There was no prayer and no contentions were raised on that aspects before the court below. 7. There is no contention that the father is omitting to discharge his obligations to pay educational expenses. It is not, in these circumstances, necessary to modify the impugned order and include any specific direction for payment of expenses/maintenance. If there be default, needless to say, the appellant's right to approach courts shall remain unfettered. 8. This Mat.Appeal is accordingly allowed in part to the above extent. (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr Mat.A.No.356/05 5 Mat.A.No.356/05 6 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009