IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 MFA.No. 8 of 2008() ---------------------------- OPG&W.170/2005 of FAMILY COURT, THIRUVALLA .................... APPELLANT: PETITIONER ------------------ ABHILASH E.K., AGED 31 YEARS, S/O.KUNJUKRISHNA PILLAI, MAROOR MURIYIL PANACKAL KUZHIYIL HOUSE, PRAMADOM VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ SRI.ANOOP JOSEPH SRI.ANOOP.V.NAIR SRI.ABHILASH AKBAR SRI.T.B.SIVAPRASAD RESPONDENTS: RESPONDENT ----------------------- JYOTHI J.NAIR, AGED 27 YEARS, D/O.JANARDHANAN NAIR, JYOTHI BHAVAN, VALANCHUZHI MURI, PRAMADOM VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.JOSEPH GEORGE THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2008, ALONG WITH MA. 59/2008, MA. NO.56/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. Koshy & K.Hema, JJ. -------------------------------------- M.F.A. (G & W) No. 8/2008 and Mat. Appeal Nos.56 & 59/2008 --------------------------------------- Dated this the 6th day of March, 2008 Judgment Koshy,J. These appeals are filed against the common order passed by the Family Court, Thiruvalla. All the appeals are filed by the husband. O.P. No.24 of 2005 is filed by the husband under section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. O.P.No.170 of 2005 is also filed by him under section 25 of the Guardian and Wards Act seeking custody of a minor son Jayakrishnan aged three years. O.P. No.567 of 2005 is filed by the wife under section 13 of the Hindu Marriage Act seeking dissolution of marriage. The Family Court dismissed the petition for restitution of conjugal rights and allowed the petition for dissolution of marriage and dismissed the petition filed by the husband for custody of the minor child. When the case came up on 4.2.2008, both parties were directed to appear before the doctors at Pramod Clinic, Panampilly Nagar. The doctors have sent a report. The doctors reported as follows: M.F.A.(G & W) No. 6/2008 and Mat.Appeal Nos.56 & 59/2008 2 "Summary Based on the limited information we have gathered from Mr. Abhilas and Mrs. Jyothi and the severity of marital disharmony a rapprochement is highly unlikely. They have not shown any interest in our evaluation process which is short compared to the therapy for marital discord. Unless both clients are motivated marital therapy will not produce the desired results. However, in matters of mind one can never be sure unless the actual therapy is done. Unlike medication marital therapy requires the full cooperation of the clients. Conclusion 1. Due to lack of cooperation from the clients full psychological and medical assessment could not be done (Mr. Abhilash attended only one session and Mrs. Jyothi three sessions). 2. The clients' attitude reflected was one of reluctance and they came only because the Hon.High Court ordered so. 3. Under the current circumstances, it appears that a peaceful and compatible married life holds little prospects of success." It is also submitted that after the dissolution of marriage, the respondent married another. The marriage was irretrievably broken and we see no ground to interfere with the order passed by the Family Court in granting dissolution of marriage and dismissing the M.F.A.(G & W) No. 6/2008 and Mat.Appeal Nos.56 & 59/2008 3 petition for restitution of conjugal rights. The Family Court has discussed the evidence in detail and we agree with the findings. 2. With regard to the custody of the child, the Family Court found that the child is only aged three years and the welfare of the child should be protected only if the child is with the mother. It is also found that the child is more affectionate to the mother. Therefore, custody of the child was given to the mother. It is submitted by the appellant that since the wife is re-married, he is entitled to custody. It has been held by the Apex Court that re- marriage alone is not a ground for denying custody to the mother, that too, with the children of tender age. (See: - Kumar V. Jahgirdar v. Chethana Ramatheertha - AIR 2004 SC 1525 and Lekha v. P. Anilkumar - 2006 AIR SCW 6358). It is submitted that both are residing in the same panchayat area. Not even a visitation right is given to the father, the appellant herein. The wife submitted that she has no objection in visiting the child. Considering the facts and circumstances of the case, we are not making any interference with the order of granting custody of the child to the mother. However, father can visit the child at 10.00 a.m. on second Saturday and on fourth Sunday of each month in the respondent's house. He can also take the child out and return the child at 5.00 p.m. on the same M.F.A.(G & W) No. 6/2008 and Mat.Appeal Nos.56 & 59/2008 4 day. If there is any special need or practical difficulty, both parties are free to approach the Family Court for change in the visitation right and interim custody. If there is any fundamental change in the course of time, both parties are free to approach the Family Court regarding the custody of the child also as most important factor to be looked into is the welfare of the child. In the result, all the appeals are dismissed except with regard to the interim custody and visitation right of the father as directed above. J.B.Koshy Judge K. Hema Judge vaa M.F.A.(G & W) No. 6/2008 and Mat.Appeal Nos.56 & 59/2008 5 J.B. KOSHY AND K.HEMA ,JJ. ------------------------------------- M.F.A.(G & W) No.8/2008 & Mat. Appeal Nos.56 & 59/2008 ------------------------------------- Judgment Dated:6th March, 2008